Judicial Review and Courts Bill
Tuesday 26th October 2021
(3 years ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
18:03 - The House divided: - Ayes: 321 / Noes: 220 - Question accordingly agreed to.
The Lord Chancellor and Secretary of State for Justice (Dominic Raab)
I beg to move, That the Bill be now read a Second time.
This Bill makes good on our Government’s manifesto pledge to ensure that judicial review is not subject to abuse and to deliver more effective, more efficient justice for the citizens of our country. I pay tribute to my right hon. and learned Friend the Member for South Swindon (Robert Buckland) for all of his work in preparing the Bill and for his outstanding tenure as Lord Chancellor and Justice Secretary.
I first want to address the so-called Cart reviews. That is the means by which the High Court reviews decisions of the upper tribunal to refuse permission to appeal a first-tier tribunal decision.
Joanna Cherry (Edinburgh South West) (SNP)
Will the right hon. Gentleman give way?
Dominic Raab
May I make a bit of progress?
Let me take one immigration case by way of illustration. A claimant whose leave to remain was revoked because of his dishonesty challenged that decision in the High Court. He was granted permission to bring his judicial review despite exhausting the appeal process at the immigration tribunal. The challenge was eventually dismissed, but not before it was sent back to the upper tribunal. At that point, the judges, Messrs Lane and Ockleton, noted that
“it appears that permission was granted on grounds which had no merit, ought to have been withdrawn by their proponent, and do not seem to have been regarded as giving a reasonable prospect of success even in the granting of permission.”
That is just one illustration. To give a sense of scale, on average, there are 750 judicial reviews against the upper tribunal alone each year, the vast majority of which are immigration cases. The success rate is just 3.4%. For completeness as well as appeals on immigration, the upper tribunal also hears cases on administrative and regulatory matters—things such as social security tax and property cases.
Joanna Cherry
I am grateful to the Lord Chancellor for giving way. I would like to intervene later on the specifics of this matter, but may I start by asking him this: the right to judicial review in Scotland is protected by article 19 of the Treaty of Union and it is a devolved matter under the Scotland Act 2016. His predecessor gave me a written assurance that the focus of this Bill would be on UK powers and procedures relevant only to the jurisdiction of England and Wales. Will he tell my why that promise has been broken?
Dominic Raab
It has not been broken, but I shall come on to address that when I deal with the devolution dimension in a little while.
Of course there must be accountability, but allowing such a large volume of flawed challenges just skews the system. Allowing a legal war of attrition—not just against the Government, but, as in this case, against the judiciary themselves—undermines the integrity of the two-tier tribunal process, which was set up precisely to deal both fairly and efficiently with immigration cases. That wastes court time and taxpayers’ money, which should be focused on reviewing more serious and credible cases. The Supreme Court Justice Lord Brown foresaw that this very problem would arise in his judgment in the original Cart case back in 2011 and he said then that
“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
Regrettably, he was proved right. It is also worth noting the more recent commentary by Lord Hope of Craighead, another of the presiding judges in the Cart case, who said in the other place earlier this year that these types of reviews have not worked and that it is time “to end them.”
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
I am very grateful to the Justice Secretary for giving way.
Over the past few years, the law has been the only way that any justice has been allowed for social security claimants. Three different judicial reviews were upheld and they said that what the social security Secretary had undertaken was unlawful—both on universal credit for disabled people and for single mothers. Which of these judicial reviews would have been allowed under this Bill?
Dominic Raab
Of course I cannot second guess the judicial decisions made in individual cases, but what I can say is that of course we want to protect the integrity not just of judicial accountability, but of the tribunal process, which we have established precisely to deal with those cases as well as others that I have discussed. The Bill will address the problem in a sensible and proportionate way, preventing Cart appeals except in the most exceptional circumstances, such as the upper tribunal deciding a type of case outside its jurisdiction, in bad faith or with some fundamental procedural error, such as not hearing one side of the case, which would clearly be wrong. Our approach will ensure that the 180 judge-days spent on Cart reviews, every year, are no longer wasted. In that way, taxpayers’ money is saved and the immigration system can function more effectively.
I would be interested to know whether Labour will support us in this matter. I have done my homework—[Interruption.] The right hon. Member for Tottenham (Mr Lammy) is laughing, but if Labour plans to vote against this Bill on the basis of Cart, I would point out that the shadow Justice Secretary personally proposed a much broader so-called ouster clause back in 2003 in Labour’s Asylum and Immigration Bill—[Interruption.] The right hon. Gentleman said that he was young and naive. I am not sure what that makes him now. Forgive me if I am reminding him of a stressful moment in his career, but it was the Asylum and Immigration Bill back in 2003. It did not have any of the exceptions and it was not as constrained as the Bill before the House today. He did not just support the measure; he proposed the measure. He was a Minister in the Department for Constitutional Affairs. I am not sure whether he has forgotten about that, but I am afraid that the Opposition have zero credibility in opposing a more targeted measure that they proposed before.
The Bill will remove Cart for the whole of the UK, but only in respect of reserved matters. I hope that all hon. Members will agree that we must have consistency in routes of appeal to preserve a coherent and efficient immigration policy and indeed the integrity of the UK’s borders.
Joanna Cherry
The Lord Chancellor will be aware—I am sure that this will be covered in other speeches—that the evidential basis for this law change in England has been questioned, but the Law Society of Scotland has said that there is no evidence of any such problem in Scotland. On the contrary, there is good recent evidence of a Cart—or Eba judicial review as we call them in Scotland—in which the first tier tribunal and the upper tier judge misunderstood the petitioners’ evidence, and the Appeal Court intervened to reduce the upper tribunal’s decision, refusing it permission to appeal. Does he accept that there is absolutely no evidential basis, north or south of the border, for the need for these kind of procedures to be withdrawn, and can he tell me why he is forcing a restriction on the Scottish legal system for which there is no evidential basis?
Dominic Raab
In fairness, I think have presented the evidential basis: 750 cases each year and barely a 3% success rate. Of course, the integrity of the tribunal needs to be protected. There are safeguards and exceptions. The Bill is not nearly as broad as the Bill tabled by the right hon. Member for Tottenham back in 2003. This is the right way for the House to proceed.
Dominic Raab
I will make some progress; I have given way to the hon. and learned Lady twice.
The Bill will reform quashing orders so that we can strike a better balance between the essential judicial accountability over the Executive and the ability of an elected Government to deliver their mandate in a lawful but orderly way. Let me give one example: the case of Her Majesty’s Treasury v. Ahmed back in 2010. In that case, the then Government acted on best information, including intelligence, and froze the funds of three brothers suspected of being al-Qaeda terrorists. They did so under the auspices of two Orders in Council, which were made in 2006 under the powers of the United Nations Act 1946. The Supreme Court considered whether the orders were ultra vires of that Act and therefore invalid.
The 1946 Act gave the Government the power to give effect to UN Security Council resolutions on threats posed by international terrorism. However, the Supreme Court decided that the orders went beyond what was necessary and expedient for implementing the relevant resolution, because the orders provided that a person’s assets could be frozen on the basis of a “reasonable suspicion” of involvement in terrorism, rather than a higher standard of evidential proof that the court deemed that the law required. The court quashed the orders immediately, irrespective of the ability of the Government to reassess or revise the order, because it concluded that it did not have the power to suspend the effect of the quashing order. That required Parliament to rush through new legislation to protect the public by preventing suspected terrorists from accessing those funds, because Ministers no longer had the powers that they believed they could exercise under the relevant legislation.
This Bill simply remedies that measure of inflexibility by giving the judiciary the power to issue a suspended—or, indeed, a prospective—quashing order, allowing the Government a reasonable period of time to review the orders and/or the legislation itself. If that had been available in the Ahmed case, it could have prevented considerable disruption and potential risk, while safe- guarding the judiciary’s vital scrutiny of the Executive in such an important area of national security.
Sir William Cash (Stone) (Con)
The European Union (Withdrawal Agreement) Act 2020, as originally passed, included provision for the courts to be able to quash Acts of Parliament. That is rather a serious matter, to say the very least. Does my right hon. Friend agree that that is very unwise—particularly having regard to the Factortame case, when we voluntarily agreed that we would allow the courts to do that—and that now that we are out, we certainly would not want that to happen again?
Dominic Raab
My hon. Friend makes a powerful argument. I have not heard the Factortame case cited in this House for some time—to the relief of some.
Of course, there are many other contexts beyond counter-terrorism—from infrastructure projects to health and safety regulation—where the use of a suspended or prospective quashing order would lead to a better outcome, allowing both essential judicial accountability and good governance at the same time; those two aspects can and should go hand in hand. Dare I say it, these reforms may have the welcome effect of making our system just a little less adversarial by giving the Government and this House the opportunity to respond swiftly but in a considered manner, rather than effectively being tripped up—sometimes at great cost to the taxpayer and at other times at potential risk to the public.
Sir Robert Neill (Bromley and Chislehurst) (Con)
Perhaps the Secretary of State and Lord Chancellor could help me on two matters. When these matters of suspended quashing orders are being worked out, will he ensure that no litigant who has succeeded and has suffered tangible loss is left without an effective remedy? That will be important, outwith any other considerations that might very properly be taken into account. I also gently say to him that he has clearly been absent from justice debates for a little while—and we welcome him back—or he would surely have known that my hon. Friend the Member for Stone (Sir William Cash) never misses an opportunity to raise Factortame when we talk about topics of this kind; he has managed to do so in this debate as well.
Dominic Raab
I can give my hon. Friend, who chairs the Justice Committee, the reassurance that he is looking for. If he looks at clause 1(8)(c) and (d), he will see that
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and those
“who have relied on the impugned act”
are material considerations for the court to consider.
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
What would the Secretary of State say to victims of rape, some of whom have been waiting up to four years to get justice, when they rightly ask why the Government are prioritising judicial review reforms in the midst of a pandemic, rather than dealing with those abhorrent crimes?
Dominic Raab
The hon. Gentleman makes a fair challenge. However, he should ignore the pleadings from those on his Front Bench and support this Bill, because, overall, as well as dealing with judicial review, with the reform agenda that we are putting through the criminal courts we will free up a substantial number of Crown court days a year—I think it is 400. That will mean, on top of the other efforts such as the Nightingale courts, the super-court in Manchester and the virtual courtrooms, that we will be able to free up further court time and space. He raised a very good point but it is a reason—an argument—for supporting the Bill.
I turn next to courts and tribunals, which, as the hon. Member for Slough (Mr Dhesi) fairly says, have been severely impacted by the covid-19 pandemic. Let me take this opportunity to pay tribute to the judges, coroners, clerks, barristers and solicitors who have worked so hard to keep the wheels of justice turning. We should take pride in the fact that, looking right around the world, our jurisdiction was the first to restart jury trials after the pandemic began.
On the point that the hon. Gentleman made, we also recognise the backlog created by the pandemic. Let me reassure him, and the House, that we are taking every measure and straining every sinew to bear down on it as swiftly as possible. As well as the super-court and the Nightingale courts, we have the new technology that will help us to reduce the backlog and pioneer other innovative procedural reforms. We are using technology to deliver better services for victims, and indeed for users and citizens, allowing vulnerable victims to pre-record their cross-examination evidence rather than have to go through the distress of giving it in court in front of an assailant. Likewise, the Domestic Abuse Act 2021, once it is commenced, will mean that all complainants of domestic abuse can give evidence during a trial from outside the court through a virtual link.
This is not confined to the criminal courts. In the civil courts, our reforms to probate mean that grieving relatives can make their applications from their own home, while the digitisation of the divorce service has reduced the time for users to complete the process by almost three months compared with the paper track. Now, as a result of this Bill, we will ensure that we are using technology to build the system around the people who actually use it, who invariably want to see justice done more swiftly and more conveniently for them, given their busy schedules, whether in work or life.
The Bill makes provision for a completely new online procedure rules committee for civil and family proceedings and tribunals. That committee will create new rules for online services consistent across all the jurisdictions. Let me give just one illustration of how the average citizen will benefit. For a self-employed person, say a plumber or a carpenter, chasing an unpaid invoice, the rules will enable these online services to be straightforward and easy to follow, dispensing swifter justice more convenient for the average working citizen as a user of the justice system. I think we should be pushing and pressing in that direction. The Bill will transfer responsibility for employment tribunal rules from the Business Secretary to the tribunal procedure committee. It will also make the committee responsible for rules in the employment appeals tribunal. While this is a rather technical change, transferring these powers to an independent judge-led committee will align the employment tribunals more closely with the wider tribunal system and promote broader consistency and efficiency.
In the criminal courts, the Bill will introduce measures that use new technology to streamline procedures to strip out unnecessary in-person hearings and create more efficient processes for allocation of cases in the Crown court and the magistrates court. That will enable swifter resolution of low-level offences such as travelling on a train without a ticket or fishing without a licensed rod without the need for the time and expense of attending court, allowing people to do it online instead, delivering a common-sense approach to our justice system.
The Bill will streamline procedures in the use of remote hearings in coroners’ courts, which will speed up and simplify the inquest process and reduce the distress for bereaved families.
Vicky Foxcroft (Lewisham, Deptford) (Lab)
When my constituents Andy and Amanda lost their daughter Colette, who was in the care of the state, they had an awful experience with the coroner service and had to crowdfund money for their legal representation. They just wanted lessons to be learned after their daughter’s awful death. Surely they should have the right to the same legal representation as the state, and providing publicly funded legal representation would improve this. What would the Minister say to that?
Dominic Raab
We have addressed that issue in response to the report that the Select Committee put out. Our position has not changed. What I would say to the hon. Lady is that I am mindful of the ordeal her constituents went through. One reason we are taking forward these procedures is to reduce that anguish and stress and to ensure that the coroners’ courts in the process deliver a better outcome for the bereaved and others relying on that service.
Bob Seely (Isle of Wight) (Con)
I am delighted that my right hon. Friend is making this speech, and we support so much of the Bill. On principle, does he accept that DNA sampling for people buried at sea would speed things up and save time for police and coroners when body parts wash up anywhere on the UK coastline, because they could quickly identify where those body parts come from?
Dominic Raab
My hon. Friend has raised that point with me privately, and he has now raised it on the Floor of the House. I am committed to looking at it and getting back to him. I understand the point, which he has raised in his usual tenacious but clear way.
Finally, the Bill will pave the way for a new state-of-the-art combined courthouse in the City of London. That court will provide an additional 10 courtrooms, predominantly to hear economic crime cases, including white-collar crime, such as fraud, and high-value business and property cases. That will be a real boost to the capital and to our vision of global Britain as a centre for investment, dispute resolution and doing business with integrity around the world. Court users will benefit directly by having access to more modern facilities, including lifts, wide corridors and a range of other measures, making it more accessible for the disabled. The City courtroom will have enhanced custodial facilities, increasing its ability to hear more cases with the most serious type of defendants.
Marsha De Cordova (Battersea) (Lab)
It is great that the Justice Secretary is talking about ensuring that this new court building will be fully accessible and inclusive, but going back to the point about digitisation, how will he ensure that everybody who needs online access will be able to access things online and that no communities will be left behind as a result of this Bill?
Dominic Raab
The hon. Lady is right to raise that concern. All of this work to modernise court and tribunal proceedings, which is necessary in its own right, will help to bring down the backlog of cases created by the pandemic. Physical hearings will always be available for those who need and want to use them, so that those who are uncomfortable or cannot access the digital and online applications will not be prejudiced. I hope that gives her the reassurance she needs to support this Bill on Second Reading.
Andy Carter (Warrington South) (Con)
I agree with the comments the Secretary of State made earlier about the work of the judiciary in bringing down delays. In particular, I put on record my thanks to the magistrates who work in our courts around the UK. Does he agree that one route we could choose to reduce the number of delays in magistrates courts is to increase the sentencing powers for magistrates? Perhaps he can say a little more on that point.
Dominic Raab
I thank my hon. Friend for the work he and the magistrates have done. They hear 85% of criminal cases. The backlog in the magistrates court is already coming down. We thank the magistrates for the incredible work they are doing. He has lobbied me on this point, and in the context of the backlog, it is something I am looking at very carefully.
In sum, the Bill will reform the immigration appeals system, protecting it from litigation attrition. It gives judges greater flexibility in judicial review to hold the Executive to account without unnecessary disruption to the essential business of Government. Above all, the Bill will drive innovation across our courts to deliver a better service for the average citizen in this country. I commend the Bill to the House.
Mr David Lammy (Tottenham) (Lab)
I begin by congratulating the right hon. Member for Esher and Walton (Dominic Raab) on his promotion to the office of Lord Chancellor and Secretary of State for Justice. I look forward very much to working with him and going toe to toe on the important issues of the day. I put on record how grateful I was for the manner in which his predecessor, the right hon. and learned Member for South Swindon (Robert Buckland), pursued his role. We were able to have very good Privy Council discussions on important issues relating to the justice system during the pandemic. I wanted to put that on record.
Hon. Members may have seen that I am joined by my hon. Friend the Member for Hammersmith (Andy Slaughter), who returns to the Front Bench to assist the Opposition in all matters legal. I pay tribute to him and to my hon. Friend the Member for Kingston upon Hull East (Karl Turner), who does so much to advance the case for legal aid.
To govern is to choose, and all Governments must choose what they will prioritise. No Government can do everything at once—not even this Government—and the Bill could not be a clearer indication of what they have chosen to prioritise and what they choose to ignore. As we come to debate the Bill, the justice system is at breaking point with more than 60,000 Crown court cases delayed, victims dropping out of the process due to waiting years for their case to go to court, and women up and down the country rapidly losing confidence in the criminal justice system. Yet here we are debating judicial review. Government Members might say that this is a manifesto commitment. Then again, so was not clobbering ordinary people with tax rises. What the Bill says about the Government’s priorities is that they are more concerned with constitutional vandalism than with fixing the mess they have made of the justice system.
Joanna Cherry
On constitutional vandalism, the Law Society of Scotland has said that the abolition of Cart judicial reviews in Scotland by clause 2 of the Bill
“has the effect not of modifying a rule which is special to a reserved matter, but rather of creating such a rule, as it means that, in future, there will be a difference in the amenability of reserved and devolved tribunals to judicial review.”
Does the right hon. Member agree that, if it is right about that, there should be a legislative consent motion for the Bill?
Mr Lammy
According to the devolved settlement, that must be the case. Perhaps the Secretary of State or the Minister will address that.
“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”
Those are not my words but the words of the right hon. Member for Haltemprice and Howden (Mr Davis), who I see in his place. He has described the reforms as “un-Conservative” and
“an obvious attempt to avoid accountability.”
I will let that hang in the air of the House of Commons.
There is no legitimate need to meddle with judicial review, least of all when there are so many other pressing issues to deal with. What message does it send to the victims of serious crime in a time of crisis that the Government’s first objective is to weaken quashing orders —one of the tools available when a court finds that a public body or the Government have acted unlawfully?
Kim Johnson (Liverpool, Riverside) (Lab)
Does my right hon. Friend agree that the collapse of the Hillsborough trial identified flaws in our legal system and caused untold trauma to the families of the 97? Will he join me in urging the Government to bring the Bill back with amendments to include automatic non-means-tested public funding for bereaved families when public functions are involved?
Mr Lammy
My hon. Friend rightly raises the Hillsborough families, and she knows that, just like the Grenfell families, they have relied on judicial review. She raises that in relation to legal aid and will know that I have made such a commitment at the Dispatch Box. We will wait to see whether the Government will meet us with that important pledge on behalf of any individual facing tragedies of that sort.
The Bill seeks to make profound changes to how quashing orders work and, crucially, to what redress victims of unlawful decisions can receive from the courts. Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. The effect of that would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision.
On the face of it, that might seem to be quite a small change to judicial review, but the effects would be profound and chilling. The Government’s own consultation paper even conceded that a prospective-only quashing order would
“impose injustice and unfairness on those who have reasonably relied on its validity in the past.”
Let us look at how that would work in practice. When the Supreme Court quashed the employment tribunal fees in 2017, the effect of its declaration was that fees were identified as being unlawful from the start. Thousands of workers unlawfully denied access to justice therefore had their tribunal fees refunded. Had a prospective-only order been made, they would have been left out of pocket, despite the fees being ruled unlawful. How can that possibly be right? What would be the point of bringing a claim for judicial review, if people knew before they even started that they would be no better off? What is the purpose of judicial review if it cannot hold public bodies rightfully to account?
That is just the tip of the iceberg. As more people are left without the redress they deserve, many more will be put off bringing their own claim, even if those were perfectly valid. As a result, unlawful decisions made by the Government—by any Government, of any colour or stripe—or a public body will go unchallenged. Perhaps, however, that is what the Government want, and the right hon. Member for Haltemprice and Howden certainly seems to think so, when he argues that the Bill is simply a way for them to dodge being held accountable. We all know that the ability of members of the public to challenge public bodies is vital to maintain a country built on good governance.
Joanna Cherry
I am grateful to the right hon. Gentleman for giving way a second time. Is the reason for the attack on judicial review that this Government have had a bloody nose repeatedly in the courts—on employment tribunal fees, asylum issues and benefits, and in the Prorogation case—and they do not like to be held to account?
Dr Kieran Mullan (Crewe and Nantwich) (Con)
Is the right hon. Gentleman familiar with and has he reflected on the words of a former Labour Home Secretary, who criticised
“unaccountable and unelected judges usurping the role of parliament, setting the wishes of the people at naught and pursuing a liberal politically correct agenda of their own”?
How have those words informed his remarks today?
Mr Lammy
I have not reflected on that statement very much.
I was reminded recently of the importance of judicial review by the infamous “Judge over your shoulder” leaflet, which has been published since 1987 to remind civil servants of the importance of sound decision making. The leaflet advises civil servants of the importance of good governance and of making decisions effectively and fairly to avoid those decisions being found unlawful. It recognises that administrative law and, in this case, judicial review played an important part in securing good administration by providing a powerful method of ensuring that the improper exercise of power can be checked.
Frankly, that is why having effective judicial remedies is so important to maintain good governance. The threat of judicial review is a powerful tool to encourage decision makers to make decisions well and fairly. If the power of quashing orders were to be neutered in the way clause 1 seeks, not only would that leave victims of unlawful decisions without the remedy they deserve, but it would reduce the motivation for public bodies to take care when making decisions. I agree with the Law Society of England and Wales when it says that that would have a truly chilling effect on justice in this country and we must question why the Government are even considering the changes in clause 1. Those changes go far beyond what was recommended by the Government’s own independent review of administrative law. The review made no recommendation that quashing orders should be prospective only. It specifically recommended against that type of presumption.
Wera Hobhouse (Bath) (LD)
Does the right hon. Gentleman agree that the sign of a mature democracy is that it protects the marginalised and vulnerable? Government Members completely misunderstand that point.
Mr Lammy
The hon. Lady is absolutely right. That ought to be a principle across the House, not a party political issue.
To return to the review of administrative law that the Government set up, in their consultation response, the Government acknowledge that presumptions were not recommended by the review panel, and they were generally met with scepticism from respondents to the consultation. Indeed, it is not even certain whether prospective-only remedies would withstand a challenge before the European Court of Human Rights for failure to provide an effective remedy. Given the Government’s own panel of experts, and the sector, are opposed to that change, and given the harmful effect that it would have on victims of unlawful decisions, as well as on governmental decision making, we must ask why the Government are keen to make this change. Is it really, as they suggest, to provide courts with greater flexibility, or is it simply to insulate the Government from being held to account, and to weaken the power of claimants to seek compensation?
Clause 2 seeks to abolish Cart-type judicial reviews. For Members who may not be familiar with what those are, Cart judicial reviews allow individuals to ask the High Court to review decisions made by the upper tribunal to refuse a right of appeal. The vast majority of Cart reviews are sought by those who find themselves in horrendously desperate situations and they invoke some of our most fundamental human rights, including in some cases the difference between life and death. During the review of administrative law that the Government set up and the consultation stage, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review has been used to put right an incorrect decision made by the upper tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive lifesaving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals faced persecution or their lives would be at risk.
Mr David Davis (Haltemprice and Howden) (Con)
I thank the right hon. Gentleman for giving way and I am pleased I have provided half his speech for him. I have an important point in support of his argument. Much of the Government’s argument on Cart appears to be that there are very few successful cases. First, I think they got that wrong—they thought it was less than 1%, but it is probably 6%. Secondly, the point the right hon. Gentleman is making is that, when they get it wrong, the consequences for the individual are dramatically bad. We must always think that through. When dealing with law, we must protect the weakest from the worst consequences.
Mr Lammy
The right hon. Gentleman makes his point very well. He is absolutely right. In each of the cases that I mentioned, judicial review was able to correct a wrong decision by the upper tribunal and enable fundamental injustices to be prevented, as he indicates. If the Government were successful in abolishing Cart, that crucial safeguard would be lost. That would not affect anyone in this Chamber, but it would affect very vulnerable people. Again, one must ask why the Government are attempting to make this change, and why they are using legislative time now to do it.
When the panel that the Government set up to look at these issues first recommended abolishing Cart judicial reviews, it did so on the basis that only 0.22% of them were successful and that public money could be better spent elsewhere. We know now that that figure was based on wholly inaccurate data. Even the Government now accept that the success rate is likely to be at least 15 times as high as previously thought. It is indefensible for the Government to base decisions that could make the difference between life and death on evidence that is so hopelessly flawed.
Laura Farris (Newbury) (Con)
I hear what the right hon. Gentleman says about Cart judicial reviews, but can he explain why Lord Hope, the retired Supreme Court Justice who sat in the Cart case at the Supreme Court, spoke in the House of Lords on 22 March in favour of abolishing Cart-type judicial reviews? He said:
“We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
Mr Lammy
That is one reflection among many who sit on the other side of the debate, including those who have looked into this matter in great detail.
Why are the Government still pushing ahead with this reform? If we accept the Secretary of State’s reasoning, it comes down to cost and
“a disproportionate use of valuable judicial resource”.
In reality, however, the cost of Cart reviews is no more than £400,000 a year. That is a drop in the ocean compared with the Ministry of Justice’s overall budget. It is less than the Department for Digital, Culture, Media and Sport spent on its art collection last year. Put another way, the Government Legal Department’s total administrative costs for the last year were £226.7 million, more than 500 times the upper estimate for yearly Cart judicial review costs.
As with clause 1, there could be another, murkier reason that the Government are so keen to abolish Cart judicial reviews. In its press release, the Ministry of Justice said that
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
With those words, the Government let their mask slip. If that is indeed their intention—I look forward to the Lord Chancellor confirming that it is not—that would allow them to insulate whole sections of Government decision making from challenge by members of the public. I am sure that Members on both sides of the House would agree that that would be a truly chilling development. Governments have to be challenged. Governments suffer defeats in the courts. Why would we start to oust Government decisions in other areas, beyond this small but important area of immigration law?
Beyond judicial review, there are several provisions dealing with a shift towards greater use of online procedures and technology. While Labour supports measures that would make the justice system more efficient, we must ensure that no one is left behind and that adequate safeguards are in place to prevent serious injustices. As the Bill currently stands, there is only a vague duty for the Lord Chancellor to provide digital support
“for those who require it”.
Labour feels that a specific commitment to assist digitally excluded individuals would offer better protection. While the creation of an online procedure rule committee is a positive step, the Bill currently puts too much power in the hands of the Lord Chancellor. As it stands, the Lord Chancellor could amend, repeal or revoke any law he feels necessary to create the online procedure rules, and he would only have to consult the Lord Chief Justice and the Senior President of Tribunals before making amendments to them.
The last area I want to address is the coroners court. As with provisions on criminal procedure, any efforts to reduce “unnecessary procedures” or allow for greater online participation must be accompanied with robust protections for those who could be excluded. More fundamentally, there is nothing in the Bill to address the inequality in the inquest system that sees bereaved families denied the legal aid that my hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft) mentioned earlier, while the state has the benefit of the finest Government lawyers that taxpayers’ money can buy.
Yasmin Qureshi (Bolton South East) (Lab)
Does my right hon. Friend agree that hospital authorities can hire Queen’s Counsel and spend millions of pounds on defending themselves, yet lone individuals cannot even get legal aid following the death of their immediate family? How disgusting is that?
Vicky Foxcroft
Just to reiterate the point about Colette, Andy and Amanda, and the pain they are going through after losing their daughter, they then have to crowdfund money to try to make sure that lessons are learnt. We must ensure we have a legal aid system in place that protects them. On the Labour Benches, I believe the shadow Secretary of State will be saying just that.
Mr Lammy
My hon. Friend’s championing of these issues is so important. The cupboard has been stripped bare and a real crisis is emerging, with vast legal aid deserts across the country. You cannot level up the country if people cannot get access to advice. That is the point and she is right to make it.
The Secretary of State made much of my youthful endeavours at the Dispatch Box 17 years ago. I said to him from a sedentary position that, on reflection, I was young and naïve. I say very gently to the Secretary of State that he is a younger man than I am. He needs to reflect on that. I did table an ouster clause to the asylum Bill at that time, but I listened, reflected and removed it before it could be enacted. The question today is this: will he do the same? Will he be the big man we know he is capable of being and remove this clause from the Bill, as he is being encouraged to do by such a senior colleague as the right hon. Member for Haltemprice and Howden?
The Bill is unnecessary and unwanted at a time of crisis in the justice system: it robs citizens of effective remedies when they have been wronged by the state; it would leave some of the most vulnerable people in society without a last defence against unlawful Government action; and it could act as a prelude to a wider assault on the rights and protections of individuals. I ask the Lord Chancellor, when the Government should be tackling the backlogs in the Crown courts, the magistrates and the employment tribunals, when they should be trying to repair their appalling record on prosecutions and convictions for rape and serious sexual assault, when they should be fixing the staffing crisis in prisons and probation, why have they chosen to protect themselves? Labour will be voting against the Bill today. I ask Members on both sides of the House to do the same.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to participate in the debate and to follow the two Front Benchers. I welcome the Lord Chancellor and Secretary of State to the Treasury Bench, and thank him for the very generous and accurate tribute he paid to my right hon. and learned Friend the Member for South Swindon (Robert Buckland), whose conduct in office was of the very highest. I also welcome the hon. Member for Hammersmith (Andy Slaughter) to the Opposition Front Bench. He is a great loss to the Justice Committee, but very much the Opposition Front Bench’s gain. I look forward to seeing him in his reincarnated capacity. This is proof, I am glad to see, that the Labour party believes in recycling, and doing it in a good way, in this instance. If it is any help, I was recycled by David Cameron once—it happens to all the best, I promise. I am delighted to see the hon. Gentleman there.
This is an important Bill and, in fairness, a measured and tightly focused one. One might not have thought that from some of the things we have heard, but that is the reality. Again, that is in no little measure due to the focus of my right hon. and learned Friend the Member for South Swindon, the principal author of the Bill. I welcome the fact that he did that, and the fact that the Lord Chancellor has adopted the same approach to the Bill.
There were a great deal of noises off around what might or might not happen on judicial review, and I am glad that the course was sensibly adopted of having an independent review panel, chaired by an eminent Queen’s Counsel, the noble Lord, Lord Faulks, who is a distinguished Member of the other House and who, as I think everyone conceded, had approached his duties as a Justice Minister with exemplary fairness and impartiality, was respected by both sides, and had many years of practice in the field. He led a panel of experts who were also distinguished in the field, and they produced a measured report, for which the whole House should thank them.
That report was a great public service, and it is right that the Government have essentially built on the recommendations that the panel made, and the fact that the panel did not regard the judicial review as a major problem, but suggested sensible ways forward, is not something to be held against them. That seems to me exactly what one can expect if people follow the evidence, which is precisely what the panel did and what the Bill also does.
It is important to recognise that judicial review is an important factor in our constitutional arrangements. When I started as a law student in the mid-’70s, judicial review in its modern concept was in its very early stages of development. The late and lamented Professor de Smith was still alive and had produced the first of his two textbooks, but the subject was still largely taught in terms of the old prerogative writs of mandamus, prohibition and certiorari.
A lot has have moved on from then, and we have developed a much more sophisticated and wide-ranging corpus of administrative law. That is not of itself a bad thing, because it reflects the reality that, as I think the late Lord Hailsham of St Marylebone once observed, in the post-war years we have grown a regulatory state. Therefore, the actions of the state and of public bodies—state agencies, local authorities, hospital boards and a raft of others—impinge on many areas of citizens’ lives. That is not necessarily a criticism, but there are greater interactions between the state and its various agencies and the lives of its citizens.
There will be impacts there, and by the nature of the human condition, errors will be made by decision makers. It is perfectly reasonable that we have seen that, but, as has been observed, there has been an exponential growth—I think that was the phrase used—in judicial review. That is worth bearing in mind, because it has sometimes come at the cost of complexity in administrative law.
Lord Justice Haddon-Cave delivered a very useful lecture, the Gresham lecture, in June this year, which reflects wisely on the balances there: the fact that the growth of judicial review is not of itself a bad thing if it gives remedies to those who are wronged, versus the fact that in some areas of the law—the concept of Wednesbury unreasonableness and lawfulness being one—that has led to a degree of complexity. As Professor Richard Ekins of the University of Oxford has observed, that in turn can, in the fields of lawfulness, voidability of decisions and so on, lead to uncertainty. In so far as, according to the Bingham test of the rule of law, we want to see clarity and accessibility of law, we also want wherever possible to see certainty. Nothing can be an absolute in this world, but that is a reasonable objective, and I think the Bill seeks to strike a balance.
What the Bill is not, in fairness, is an assault on judicial review. It is unfair to characterise it as such in every respect; I would not support the Bill if it were, nor do I think that any Conservative would. The truth is that judicial review—the ability of the individual to seek redress against the actions of the state or its agents—is fundamental to the English concept of liberties. In his role as an author, the Secretary of State wrote about these matters before he came to the House, so he recognises that point, as do I and as does the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy).
Judicial review—I say this to the wider public as well as to colleagues—is in the DNA not just of our British constitutional arrangements, but of the Conservative party. The ability to challenge the actions of the state and its agents when they get it wrong is fundamental to our concept of limited government. Supporting judicial review is an entirely Conservative thing for the Government to do and, dare I say it, an entirely British thing, across all the jurisdictions.
Joanna Cherry
As usual, the hon. Member is making a very learned and well-informed speech, but I want to challenge his assertion that the Bill is in line with Bingham rule-of-law principles. The Bingham Centre for the Rule of Law has produced a detailed briefing on the Bill, which says that clauses 1 and 2 are not in keeping with the Bingham principles on the rule of law and should be removed from the Bill. What is the hon. Member’s comment on that?
Sir Robert Neill
I have great respect for the Bingham Centre for the Rule of Law, but I think that it is wrong—it is as simple as that. I have come to the view, as I think the independent panel did, that the two clauses are not in conflict with the rule of law. That is precisely the sort of area in which there can be legitimate debate. I have worked with the Bingham Centre on many occasions, as the hon. and learned Lady knows, but I do not think that its conclusion is justified on the evidence. I think that that point is borne out by referring to the conclusions of the panel in relation to clauses 1 and 2, which I will come to in just a moment.
We all believe in the importance of judicial review. It is regrettable if any side in political debate sees tension between Parliament and the courts, or between the Executive and the courts, as a bad thing. There is always an element of tension in any constitutional relationship. Sometimes a decision may not go in our favour when we are councillors, members of health authorities or Ministers —it happened to me when I was a Minister. We may not like it, but equally we have to respect the decision. I do not see anything in the Bill that changes that fundamental point at all.
I will address the judicial review aspects of the Bill first, although I do not want to forget the other aspects. What we are dealing with is two very limited and specific proposals; that is a dangerous phrase to use under certain circumstances, but I think it works quite well in this regard. In relation to Cart reviews, I must say—with respect to those who seek to uphold Cart—that I understand the point that in a tiny number of instances there might be success, but overwhelmingly they have not proved successful.
I commend to the House the observations of my hon. Friend the Member for Newbury (Laura Farris), who quoted Lord Hope. Of course there are others who argue to the contrary, but with all respect, I think that the views of a senior Law Lord who sat on the case in the Supreme Court and has said “We got it wrong” might carry just a little more weight than those of some other commentators. Certainly the conclusion of Lord Faulks’s panel was
“that the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued”,
so the Government have acted in line with their independent review and in line with the evidence.
I will make an additional point, which has already been posited, but which is important. Many who practise law would say that in truth there is an inherent illogicality in giving one particular class of appeal, as opposed to others, a third bite of the cherry on the merits, when a decision on the merits both of fact and of law has already been taken by the Upper Tribunal, a tribunal of equivalent status and standards to the High Court. That is not an appeal to a superior tribunal; it undercuts the jurisdiction of an equivalent court. With respect, there is no logic to that at all, so it seems to me that it cannot be said that there is anything objectionable in a modest amendment that relates to removing Cart litigation.
In relation to joint enterprise manslaughter, as hon. Members will recall, the Supreme Court used a phrase about the Court of Appeal taking “a wrong turn”. I think that this is an instance in which we can say—and Parliament is entitled to say, with respect—that the Supreme Court in Cart took a wrong turn, and that we are entitled as a matter of public policy, as is conceded to be Parliament’s prerogative in these matters, to reverse it in this limited measure.
May I also deal with the issue in relation to quashing orders? It does not seem to me that it can be objectionable to increase the suite of remedies available to the courts. There can be difficulty when quashing arises, and I do not say that this is a complete solution to it—I shall return to that in a moment—but I think it is worth quoting, in full, the recommendation of the independent panel:
“Accordingly, we recommend that section 31 of the Senior Courts Act 1981 be amended to make it clear that the courts have the power to make suspended quashing orders in appropriate cases. This could be done through the insertion into section 31 of a new subsection (4A), which would read, ‘On an application for judicial review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period.’”
That, broadly, is the scheme which the relevant provisions in the Act follow. They follow the recommendation of the independent review, and I therefore do not think that there are any significant grounds for criticism in that regard.
The one question that I would raise about this—and I posed it in my intervention earlier—relates to ensuring that when we consider the way in which the statutory presumption which underpins this is set out and is then put into force in practice, we do not allow the individual litigant who has suffered tangible loss as a consequence of an impugned decision to be left without a genuine and meaningful remedy. A future declaration of illegality will not of itself recompense a person who has lost a business, lost an opportunity or lost employment, or something of that kind. Provided that this is applied in a way that ensures that that person does not lose out, I do not think that there is anything objectionable here.
There will be some who are parties to litigation and wish to see a change of policy rather than the question of having suffered individual loss, but I should have thought in those cases, the suspended and future quashing orders are perfectly legitimate and proportionate. It is the need to deal with the individual who has lost out against the state that I think we need to safeguard, and I hope the Minister will confirm that that will be done. I am grateful to the Secretary of State for having done so in response to my intervention. That, I think, is the key test.
Another point might be worth bearing in mind. Again, I refer to the helpful paper published by Professor Ekins this morning. This is a path that the Government are not going down, but I should like to know whether there will be some scope for the deferring rather than the suspending of a quashing order. There are circumstances in which that might enable remedies to be applied without some of the difficulties that could arise from uncertainty. I do not say that that is right, but it is worth looking at the paper from Professor Ekins, because it posits some modest amendments that may be worth considering at a later stage in the Bill’s progress. I do no more than float the idea. As it is, however, I see nothing that can be regarded as in any way an assault on judicial review in the first part of the Bill. These are sensible and modest reforms—and reform is not the same as an attack; reform is exactly what we do to keep law up to date.
Let me now turn to the remaining parts of the Bill, starting with criminal procedure. It seems to me that there is nothing wrong with modernising procedure; technology changes, and we all learn. The shadow Secretary of State and I practised in criminal law for much of our careers—as, indeed, did the shadow Minister—and in our time we have all seen procedure change out of all recognition in some respects, often for the better. I think we all agree that serious sexual offences, for example, are handled much better now than they were when we started off in practice at the Bar. In particular, claimants get a far better deal. That is just one example, but I can think of other safeguards that have been built in—the Police and Criminal Evidence Act 1984, and a raft of other measures—and have acted to prevent abuses against defendants in the course of investigations.
Procedure can always be improved, and we ought always to be able to take advantage of technology, as we do with video-recorded evidence and so on. Again, there is nothing objectional about that in principle, and I do not think there is any harm in greater flexibility either. Easy movement between the courts can certainly save time. However, I ask the Government to bear in mind that that needs to come with appropriate safeguards.
My concerns about this have been well set out in the Bar Council’s briefing. For example, when moving from in-person proceedings—which at the moment are often remote proceedings—to a written procedure for certain types of offence, safeguards will be needed as to what precisely the specified offence is going to be. An example that the Justice Committee has highlighted in previous reports is that of a young person who has foolishly committed an act and who enters a guilty plea or accepts a caution, which is recordable. That plea is recorded and then, years down the track, because of the way our criminal records system currently works, they find that it is a serious obstacle to employment or educational opportunities that goes way beyond anything they had contemplated when they entered the guilty plea, perhaps to get it out of the way, at the time.
I am concerned that these categorised offences should not involve anything that is imprisonable, and I also suggest that we should not use the provision for anything that is recordable. I can see that in certain types of offence, such as the non-payment of the television licence fee, this could certainly speed things along, but there needs to be a safeguard for anything that is likely to have an effect on someone’s character, reputation or future life chances. The safeguard is surely that we ensure that an informed decision has been made, which must imply access to legal advice before the decision to enter an online guilty plea is made.
We all know that criminal proceedings are often dynamic and that things come to light as we go along. That can happen with the disclosure of material online as much as in person, and there must be a specific provision to withdraw a guilty plea at an appropriate time if it becomes apparent that an arguable defence could be raised. That seems to be a fair balance, and it needs to be specifically written in, either in the legislation or in regulations. I hope that the Ministers will undertake, at the very least, to reflect that in regulations; that is probably the most constructive way, rather than changing the primary legislation.
We also have to look at one or two anomalies. I note, for example, that in relation to the provision for online procedures, the trigger age relates to someone over the age of 18. However, in clause 4, which deals with
“Guilty plea in writing: extension to proceedings following police charge”,
subsection (3)(b) states that the provision shall apply where
“the accused had attained the age of 16 when charged”.
I do not see the logic in that, so perhaps the Minister can help me when he responds to the debate. What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future. It is not the principle that I object to; I am just concerned that we get those safeguards in place.
While I am on the subject of criminal procedure, I must point out that modernisation is fine and has its place, but what happens tomorrow in the Budget is as important as anything else. I am all for making the best possible use of scant judicial resources and time, but none of the proposals compensates for the proper funding of the courts system. Sadly, we have a legacy of decades of underfunding—under Governments of all colours, let us be blunt. There is no party point to be made here. Under all Governments, the courts system has not been funded to the level it requires, and I hope that the Secretary of State will use his important position within the Government to take forward the ambitious spending bid that his predecessor talked about. If he does that, he will have my support and that of many others on both sides of the House. Investment in justice is investment in the fabric of society, and that is good for us all in the long term. That is a slight digression, but I hope I will be forgiven for raising it in the circumstances.
I now turn to the remaining provisions. Moving tribunals across makes sense. Many people who practise in the tribunals would say that it is about time that tribunals were not regarded as slightly out on a limb and as a bit of a poor relation. A closer alignment will be beneficial for their interoperability. For example I noted during the pandemic that some tribunals’ rule systems, not being the normal Supreme Court rules, lagged behind the courts in adapting to online hearings, so the change can only be beneficial.
I wish the Government had gone further and adopted the recommendations of the Justice Committee’s report on coroners. As far as it goes, the change is well and good but there is a missed opportunity to which we can perhaps return in due course. There is nothing in the Bill to which I object, and I see the good sense in greater flexibility on certain types of hearing, but that is no reason for not being more ambitious in relation to coroners either in this Bill or in future legislation. As the Bill proceeds, I hope we will be able to look at that again, because the coronial system is important to the country and particularly to victims and bereaved families, and it operates with variability, if I might put it that way, across the country. The Select Committee’s well-reasoned proposals deserve more consideration than they have perhaps had so far.
There is an argument to be made about equality of arms, which is again about funding. Massive sums are not required to give the families of victims in complex inquests equality of arms with state agencies that do not appear on the other side in technical terms, because of the nature of a coroner’s inquiry, but in reality are making assertions that the families would rightly wish to challenge and explore. I hope the Government will reflect on that as a measure of fairness and equity.
This Bill has proved to be less controversial than it was flagged up to be, and it is the better for that. It is a sensible, conservative set of incremental improvements and proposals that are welcome and should be supported. Parliament, the judiciary and the Executive have important and equal functions in our system. The rule of law does not mean that every public action has to be subject to judicial review, but it does mean that judicial review should be sufficient, strong and robust enough to ensure that victims of injustice are recompensed.
It is also important that we who sit in this House and who operate in the political sphere recognise the integrity of the judiciary in their sphere. As Lord Faulks’s review concluded, we can trust that the judiciary will act properly, accordingly and fully within the limits of their powers, and we should respect that, as we can also be confident that they will respect us.
Anne McLaughlin (Glasgow North East) (SNP)
I welcome the Secretary of State to his new role, and I pay tribute to his predecessor, who was courteous and respectful to me at all times.
This Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of some of their most vulnerable people, whether it is the Elections Bill putting barriers in the way of ordinary people being able to vote; the Police, Crime, Sentencing and Courts Bill restricting the right to protest publicly; the Nationality and Borders Bill potentially criminalising people for saving the lives of asylum seekers; or this Bill reducing access to justice for those who have been badly treated by a public body. As Liberty has said, there is
“a concerted attempt to shut down potential routes of accountability and exert the power of the executive over Parliament, the courts and the public.”
Since my first election in 2015 I have sought to ensure that my constituents understand what goes on in this place. I think we can all agree that there is much that perplexes people, and that there are many levers that we and they can use of which they are not aware. There is a huge learning curve for a new MP so, as I got to grips with things, I tried to pass on what I learnt.
As time has moved on, I have turned my attention to the complexity of the language which can create barriers for people who do not do parliamentary speak. Since I became my party’s justice spokesperson, I have become acutely aware of the sometimes even more exclusive nature of legalese, so I feel something of a duty to interpret what is going on so that it can be readily understood by the average person in the street. To be clear, I am not questioning the average person’s ability to understand, but if someone does not use legal or parliamentary language regularly—and how many people out there do?—it will not come naturally. When we speak, we should remember that we are speaking not just to each other in here but to our constituents and to each other’s constituents. When they are losing their right to justice, we have an absolute duty to make sure that they know that that is what is happening. That is what I hope to do today. I am also happy to confirm that we are opposed to much of the Bill and will vote against its Second Reading.
Clause 2 seeks to oust Cart judicial reviews and, in Scotland, Eba judicial reviews. If an individual feels that a public body—such as the NHS, their local council or the Department for Work and Pensions, to name but a few—has failed to follow the law correctly in its decision-making process, that individual can appeal to the first-tier tribunal. If the first tier finds against them and that individual believes it has made an error of law, perhaps by overlooking vital evidence or misinterpreting the rules, that individual can appeal to the upper tribunal. Currently, if the upper tribunal refuses an appeal on the decision of the first-tier tribunal, the individual can ask to have the decision judicially reviewed. All sorts of criteria have to be met—one cannot simply ask for and get a judicial review—but currently people can at least apply. The legislation before us will remove that right. One might say, “Well, they’ve already had two bites of the cherry,” but the independent oversight of judicial review is being removed only for the tribunal system; currently, all other judicial reviews will continue. I say currently, because I share the fears expressed today by the right hon. Member for Haltemprice and Howden (Mr Davis) in his article: we do not know where this will lead. We do know that it is so often the tribunal system that deals with the least powerful in our society, from whom the Bill removes the right to justice.
As the Law Society of Scotland has pointed out, the decisions of the upper tribunal are often taken by a single judge, based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, or to answer any questions that the judge may have. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.
We have heard much talk about the Government’s justification for taking away those rights, which appears to be the high volume of applications versus the low number of successful outcomes, but let us look at that. The evidence to support the Government’s position was so flawed that the Office for Statistics Regulation decided to investigate and found that the real success rate was at least 15 times higher than the Government figures showed. When the right hon. Member for Tottenham (Mr Lammy) mentioned that, I saw the Secretary of State laughing, as if that was a derisory amount, but if we use the figures calculated by the Public Law Project, we see that that would amount to 40 people every year being incorrectly denied their right to appeal in cases where, as we have heard, the stakes can be incredibly high.
The Government seem to class an appeal as successful only if it first overturns the decision of the upper tribunal, is given permission to appeal and that appeal is then won further up the chain. They completely miss the point that Cart reviews serve to correct errors of law even if the appeal is ultimately unsuccessful. I cannot for the life of me see how all this can happen without a legislative consent motion from the Scottish Parliament, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) has argued and will no doubt argue further in her speech.
Throughout my speech, I feel like I should be saying, “As the right hon. Member for Tottenham said,” because it feels like we have swapped speeches. I am trying to find different examples. We have heard that even the Government’s own figures say that the change will save only around £400,000 per year. Never mind the spending on the art collection: £2.6 million was spent on refurbishing No. 9 Downing Street as a media centre, and the saving represents less than one sixth of that. What is more important?
Let me return to why this type of judicial review is so important. I want to give an example of when it saved somebody’s life. This case concerns a Venezuelan man and his family who had fled to the UK after witnessing the violent murder of his friend by state actors. He arrived in Edinburgh and was refused asylum claimed on the grounds that if he was sent back to Venezuela, the perpetrators, who clearly had scant regard for human life, would seek to silence him. The first-tier tribunal and the upper tribunal surmised that, because he had suggested in evidence that he would not be able to recognise the killers, he had nothing to fear. Thankfully, he had that vital last line of defence and was able to judicially review the decision.
During the proceedings, the court found that both tribunals had made an error of law in misunderstanding this traumatised man’s evidence. He could testify to the time and location of the murder and he could be a credible witness in an investigation—perhaps his memory would be jogged by viewing photographs or creating photofits. It was obvious that the perpetrators would surely know that and would do anything within their power to prevent him from speaking up on his return.
The upshot was that the man was allowed to appeal. He won his appeal and was saved from deportation and almost certain persecution and death. How can the Government justify even to themselves taking away those rights?
The reversal of Cart-type judicial reviews could, as Liberty and others have pointed out, affect cases of access to vital benefits, leaving people with disabilities and those facing destitution and homelessness without a last line of defence. Nobody can guarantee that they will not one day have a disability, and very few people can guarantee—perhaps a few in here can—that they will not be absolutely dependent on disability benefits to survive financially. If, for some reason, they were to be denied those benefits, as happens far too regularly, and appealed against it, they would deserve the right to question that decision-making process.
I want to focus now on the suspended quashing orders and the prospective-only remedies in clause 1. They will not apply in Scottish courts, but because they can and will affect UK-wide laws, they will affect people living in Scotland—until, of course, we are independent, which I hope will not be too long from now. These changes could have a big impact on the Scottish courts for other reasons that I will come onto a little later—it is something known as forum shopping. Whether or not these orders are primarily for England and Wales, they are just plain wrong.
Let us look at quashing orders. The right hon. Member for Tottenham talked about the case of the employment tribunal fees. Basically, in a landmark judicial review in 2017, the Supreme Court found in favour of the applicant. I will not repeat everything that he said, but given that people were being charged up to £1,200 to access justice, this was a great outcome that will have made a big difference to many. If clause 1 had been in place then, those extortionate fees could have stayed in place until a date determined by the court. That would have given the Government time to rectify the unlawful policy. In other words, they would have been able to change the law so that the thing that had just been judged to be unlawful was suddenly lawful. Is that not incredible?
Angela Crawley (Lanark and Hamilton East) (SNP)
Specifically on the important point about tribunal fees, this Government could have listened carefully to comments from across this House before introducing them. However, judicial review served as the primary purpose and vehicle for an individual to take action against this Government. How does my hon. Friend think this Government will be able to have that action taken against them in the future if they have their way with this Bill?
Anne McLaughlin
My hon. Friend is absolutely right, but she is wrong to think that I can suggest anything, because I cannot do so. I would love to know what the Secretary of State is saying about this. We really cannot underestimate the chilling effect that this will have. It will put people off attempting to access justice in the first place. Who would put themselves through all this for no tangible outcome? Clause 1 creates a perfect storm of claimants having no incentive to challenge the Government or other public bodies, whereas the said public bodies and Government can proceed safe in the knowledge that they can do what they like. It is the risk of being held to account and the potential for challenge that drives good decisions and policy making.
As I said earlier, despite clause 1 being restricted to the courts of England and Wales, there will be an impact on the Scottish courts. If the Scottish courts are not directly subjected to clause 1, which they are not, what is to stop people from using the courts in Scotland to bring judicial review challenges on UK-wide legal matters? After all, it makes sense to take a case to a court where judges have more discretion and a wider set of legal remedies. So, while on the one hand, I am always happy to showcase anything that we do well in Scotland and certainly very happy to link that to reasons why Scotland should be independent. If such a practice became widespread, the Scottish courts could face pressure on valuable resources, which could result in delays.
In conclusion, as Liberty reminds us in its evidence, the independent review of administrative law considered prospective-only remedies, but chose not to recommend them. It chose not to recommend a presumption for suspended quashing orders, nor did it recommend restricting judicial discretion to use alternative remedies. It did not recommend the use of ouster clauses. It based its recommendation to reverse Cart on later-to-be-discovered flawed Government statistics. However, the Government continue to push a Bill that blurs the separation of powers, restrains judicial discretion and, most importantly, discourages the public from challenging the decisions of the Government and public bodies. The SNP will be voting against Second Reading tonight, but I very much hope that some of the many concerns shared in here today by many Members will be considered before we proceed to scrutinise the Bill in Committee.
I am now going to end in a way that I never, ever envisaged I would do, which is by quoting a Conservative MP—the aforementioned right hon. Member for Haltemprice and Howden, who has said:
“Be warned: this government is robbing you of your right to challenge the state”.
We should heed that warning seriously.
Jeremy Wright (Kenilworth and Southam) (Con)
It is a pleasure to follow the hon. Member for Glasgow North East (Anne McLaughlin), although, unlike her, I find much to welcome in this Bill, particularly the parts of it that deal with sensible reforms to court processes, subject, of course, to the safeguards to which my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Select Committee, quite sensibly referred.
I want to concentrate my remarks on part 1 of the Bill, which focuses on judicial review. It is worth stressing at the outset, as others have done, just how important judicial review is to our constitutional balance. Judicial review is not, of course, there to be used as a route by which judges can run the country, and its limitations are not widely understood. Its focus in on the way a decision is made, not on the wisdom of the decision itself, which means that those whose decisions are ruled to be unlawful in the exercise of judicial review are, in fact, seldom precluded from reaching the same conclusion subsequently via a revised process.
Judicial review has practical, as well as constitutional, benefits. It can improve decision making retrospectively, as it obliges badly made decisions to be made again, but also prospectively, as the shadow of judicial scrutiny tends to encourage Government Departments to give more thought to the rationale for decisions before they are made. The lawfulness of Government decisions is not just important for its own sake, but because it enhances their effectiveness by making it more likely that those subject to them will accept them. Surely that has rarely been more important than when the Government have sought to curtail our liberties during a pandemic for the sake of public health.
Fundamentally, as a matter of constitutional principle, judicial review demonstrates that no one—not even Governments—is above the law. For me, nothing summed that up more clearly than when the Government of which I was part contested a judicial review case in the Supreme Court, on the hugely significant political question of whether the Government could initiate our departure from the European Union without further parliamentary sanction. When the Government lost that case, I—the Government’s Attorney General—could walk out of Court and confirm without hesitation or reservation that the Government accepted the Court’s judgment and would act accordingly. That is this country’s commitment to the rule of law in action.
The fact that judicial review can be irritating to Governments is not only no reason to erode it; it may, in fact, be a positive reason not to. Changes to judicial review should be approached with caution and this Bill seeks to change it in two specific ways. Let me say just a little about each of them. I will start with judicial reviews against the class of decisions identified in the case of Cart. In those cases, clause 2 seeks to exclude what are, in effect, further appeals by another name. I have sympathy with the Government’s objective, although I do not find the argument of cost and inconvenience to the legal system persuasive. I am much more persuaded by the argument that the current situation undermines another fundamental principle of our constitutional settlement—that of parliamentary sovereignty.
It is clear that Parliament intended there to be no appeal against the upper tribunal’s decision itself to refuse an appeal from the lower-tier tribunal. Constructing what is, in effect, a back-door route to such an appeal is a clear challenge to Parliament’s intent. I would therefore support a proportionate measure to exclude such replacement appeals as a matter of routine, but it is important for Parliament to reach a considered view on what it really wants to exclude. Having another go at the same argument is what Parliament has said it does not want, but I am not convinced that it said with clarity that it also wishes to exclude challenge to an upper tribunal acting in excess of its powers. I am not convinced, either, that Parliament should say that, but I fear that it may be what the current wording of the clause would achieve.
This is no time for the fascinating arguments about the merits and demerits of ouster clauses, you will be relieved to hear, Mr Deputy Speaker, but I do think that if the Government seek to use the mechanism set out in clause 2 they must be rigorous in excluding only what is necessary to give effect to Parliament’s direct will and not to prevent a check on acts beyond the upper tribunal’s mandate or powers as given to it by Parliament. Such acts would be rare, but, if they happened, would constitute a challenge to what Government legislated for and therefore to the principle of parliamentary sovereignty, too. The wording of clause 2 will therefore need further discussion.
I now come to the additional provisions on judicial review in clause 1. Although it may well be arguable that the court already has power to suspend the effect of a quashing order, I can understand the Government’s wish to make that clear, as I can see that a suspended quashing order is, at the very least, a more elegant option than making a declaration of illegality but stopping short of quashing a decision because of the potential administrative chaos it would likely cause. I have more concerns, though, about removing or limiting the retrospective effect of quashing an unlawful decision—not, in itself, a recommendation of the independent review of administrative law. In particular, I am concerned about the suggestion that this would be routine and not exceptional. Finding a decision to be unlawful but then saying that that unlawfulness applies only to those affected by it in the future and not in the past puts the court in a strange position.
The general premise of judicial review has, for some time, been that if a court finds a decision to have been made in such a flawed way that it was made unlawfully, it is saying that, in effect, the decision was not made at all. Those adversely affected by its making, from the point of its making, are then entitled to rely on the court’s ruling to pursue redress for the effect on them of a decision that has been made void. Removing the opportunity for those individuals or organisations to do so may constitute a significant detriment to their interests and should not be done without consideration for those interests. In passing, I observe that others have said that it also gives considerable power to judges to keep unlawful decisions alive for some, which one might think jars with the apparent premise that some use for judicial review reform, justified or otherwise—that judicial review judges have too much power.
Removing retrospective effect also presents a logical conundrum. A quashing order will be made only if the court believes that the decision was taken in such a defective way as to require it to be deemed unlawful and therefore of no effect. But removing retrospective effect requires the same court, at the same time, to determine that the decision was not so defective as to require all those subject to it up to the date of judgment to be protected from its impact. There may be circumstances where it is appropriate for the court to decide to do those two conflicting things at once, but they must be rare.
The difficulty with the way in which clause 1(9), in particular, is constructed is that it suggests that in fact those circumstances should represent the norm. I do accept that clause 1(9) requires the court to regard such an order as offering adequate redress as well as giving the opportunity for the court to do otherwise if there is good reason to do so. However, the clause still creates a presumption in favour of limiting or removing retrospectivity. As I say, I am not convinced that that is the right approach, but, at the very least, Ministers will need to assure us that in the consideration of whether non-retrospective quashing orders offer adequate redress, the interests of those who would have relied on that retrospectivity, as well as those who may benefit from prospective effect, should be given particular weight in the balancing exercise the court must conduct before making the order.
I finish where I began, with the fundamental importance of judicial review in our constitutional settlement. It is that importance that should cause us to be very slow to tamper with it, unless we are convinced first that there is a real need to do so that goes well beyond irritation with Government losses and, secondly, that any changes we make are well judged, thought through and do not cause collateral damage. Although I have no wish to impede the Bill’s Second Reading, given the positive effect of other parts of it, I am not convinced that part 1 on judicial review is yet in the right place to meet those objectives.
Wera Hobhouse (Bath) (LD)
It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright). As someone with no legal training, I always enjoy listening to people with legal training who make clear what the issues are. I hope the Government listen carefully to the concerns that he has raised about part 1 of the Bill. As always, the Government are putting forward perfectly reasonable proposals and mixing them up with something that is very controversial. On the Opposition side of the House, we are not at all convinced that this Bill is anything other than an attack on the most vulnerable and most marginalised in our society, and we want to protect them.
The Government claim that this Bill will hand additional tools to judges. What the Bill actually does is restrict judicial review. Judicial review is working well in this country. Although these proposals might not go as far as many feared, I remind colleagues of Lord Neuberger’s words that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected”.
Government accountability is fundamental to our democratic society. That is the principle on which Liberal Democrats oppose this Bill.
Taken against the Government’s broader programme of constitutional reform, it is difficult to see this Bill as anything other than part of a concerted effort to take power away from individuals and to stop them holding Governments to account. In the past year, we have seen: the Police, Crime, Sentencing and Courts Bill, which restricts people’s rights to peaceful assembly and protest; voter ID proposals under the Elections Bill that stop people from vulnerable and marginalised backgrounds from exercising their democratic right to vote; and attempts to weaken the Human Rights Act 1998 and the UK’s commitment to the European convention on human rights. Now we have a Bill that limits people’s ability to hold Governments to account through the courts.
Key elements within the Bill are particularly concerning. Clause 2 permits the courts to abolish Cart judicial reviews and imposes de facto ouster clauses. That removes a vital safeguard in situations where tribunals make mistakes. We have heard about that several times already this afternoon. The vast majority—92%—of Cart judicial reviews are immigration and asylum cases. Many of the remaining cases concern access to benefits for disabled people and other people facing destitution. Those are all situations where the stakes are incredibly high for the people involved.
Matt Rodda (Reading East) (Lab)
The hon. Lady is making a fascinating speech and some very strong points. Does she agree that there is now an established body of judicial review going back a number of years that seems to demonstrate that this particular area of law has allowed the Executive to be held to account by the most vulnerable and weakest in our society? Does she also agree that an additional benefit, as mentioned by the former Attorney General, the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), is that it focuses the minds of those working in Government—in particular those in the civil service and Ministers—to provide better quality decision making in the first place?
Wera Hobhouse
This issue absolutely is about that particular section of society who seem to be under attack in this case. Decisions have been made where those people should have been supported in the first place, and then they do not even have a comeback under the law, and that is just wrong.
What is more, the low success rate, which the Government are using to defend their plans, massively understates the number of Cart judicial reviews that secure a positive outcome for the claimant. Scrapping Cart judicial reviews goes against everything that a fair-minded liberal democracy stands for. We Liberal Democrats will never cease to stand up for such rights.
The Government state in their press release that
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
In other words, they are admitting that the Bill is the thin end of the wedge and that it could open the door to more ouster clauses in the future, which would create whole areas of Government action that could not be judicially reviewed, making them immune from accountability through the courts.
Liberty has described the Bill as
“part of this Government’s bid to make itself…untouchable.”
The Law Society warns that the Bill
“should ring alarm bells for people who come up against the might of the state.”
There can be no justification for such a Bill in a democratic society. I urge colleagues across the House to vote against it.
Fay Jones (Brecon and Radnorshire) (Con)
It is a pleasure to follow the hon. Member for Bath (Wera Hobhouse). I rise in support of the Bill and am keen to see it make progress through the House. Before I go on, this is my first opportunity to say how delighted I am to see the Secretary of State in his post and the new Minister in his place. I echo the comments made by the Secretary of State about the former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland).
The Government are committed to fulfilling their 2019 manifesto pledge, and I am pleased that we are committing to yet another pledge to protect our democracy. The Bill will—at last—streamline our judicial system in both England and Wales, making it much more efficient. It is a good example of justice machinery, and I am pleased that my constituency of Brecon and Radnorshire will experience the benefits of these improvements.
I am glad that the Government recognise the impact of the pandemic on our court system and, as well as managing those pressures, are learning some helpful lessons and continuing with the steps they took during the pandemic to bring some court proceedings online, saving valuable time and resources. I acknowledge that the Bill benefits both England and Wales and, as the representative of a constituency with roughly 60 miles of the border between our two nations, very much welcome provisions that will remove the statutory requirement that magistrates courts must be divided into separate local justice areas. My constituents will often travel across the border for employment, education and other things, and the judiciary is no exception. In that spirit, I will focus my remarks on the courts elements of the Bill.
I commend the Government for the work they have already done, particularly in the field of domestic abuse. I was proud last year to be a member of the Domestic Abuse Bill Committee and am even prouder that that Bill was prioritised by the Government during the height of the pandemic. The Government, conscious that coronavirus was not the biggest threat for those enduring lockdown with their abuser, made sure that the Committee could meet and that both sides of the House could scrutinise and improve that Bill.
One of the many strengths of the Domestic Abuse Act 2021 is the improvements it has made to the family courts. On that, I would like to see this Bill go further. In family proceedings, the Domestic Abuse Act introduced an automatic ban on cross-examination in person when one party has been convicted of, given a caution for or charged with certain offences against the witness, or vice versa. The provisions also introduced an automatic ban on cross-examination in person when an on-notice protective injunction is in place between the party and witness or when there is other evidence of domestic abuse. That is a crucial step, and one that I am very proud of.
Having praised the Government, I will ask the Minister to go further—he will not be surprised by this—and consider further amendments for family court proceedings. I do so on behalf of my constituent, Natalie Davies, who came to see me and has given me permission to mention her and raise her case. She lives in my constituency with her partner, baby and two primary school-aged children from her previous relationship. In February, she came to ask for advice due to the complexity and sensitivity of a legal dispute between her and her ex-partner.
I will not go into too much detail about Natalie’s case. However, while the conclusion reached by the judge was in her favour, her experience in the family court was completely unacceptable. In her words, it was a “complete misery”. The way in which she was treated by the judge was simply wrong for a modern age. She claims that she was repeatedly undermined throughout her case, which caused her immense distress, and she felt as though a completely one-sided approach was taken. Her barrister later confirmed that the judge had to be persuaded to read both sides of the case. During her hearing, the judge referred to her as “young lady” and commented on the fact that she was “already”—his word—expecting a baby with her new partner. He also googled her home and searched for images of her new home on Rightmove.
Natalie complained to the Judicial Conduct Investigations Office, as is proper, but she had no response, until two days before a further hearing with the same judge. She was hastily told that her complaint had been rejected. She was told that no misconduct had taken place. Had the judge fallen asleep, that would constitute misconduct, but patronising—even misogynistic—remarks and apparent predetermination on the part of the individual somehow did not constitute misconduct. I find that deeply troubling.
All in the House would of course agree that the judiciary must be free from direction by Ministers. That is entirely appropriate. However, the existing system is not working. This might well be out of scope of the Bill, but it appears to me and the other individuals to whom Natalie has introduced me since coming to see me in my surgery that we have an imbalance here, which I wonder whether we may explore as the Bill travels through the House.
We must look at a situation in which individuals do not have access to a clear and transparent complaints system. Natalie’s complaint was backed up with a written statement by her highly trained barrister, and yet it was still dismissed out of hand.
Sir John Hayes (South Holland and The Deepings) (Con)
My hon. Friend makes a compelling case along particular lines. She is right about access to legal recourse. I do not know whether she has had a chance to look at the important speech given last week by the Attorney General, which sets out how, in parallel, people are using the courts to perpetuate political debates. Ironically, some people do not have access to justice, and others are using the courts for political ends, which is why the Bill is so important.
Fay Jones
My right hon. Friend is absolutely right, and I bow to his experience in these matters. That should be considered as the Bill travels through the House. I want to see it make progress and I commend the Government for their ambitions thus far, but I would like, and would be grateful for, a conversation with the Minister about what we can do to ensure that all those who have the inevitably difficult experience of going through the family court are treated with the utmost respect.
Angela Crawley (Lanark and Hamilton East) (SNP)
Scotland’s justice system remains devolved and, as such, the powers to amend the judicial review process are, thankfully, protected. The UK Justice Secretary’s predecessor recognised that separate nature in March when he told the House:
“In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.”—[Official Report, 18 March 2021; Vol. 691, c. 510.]
The Minister must give similar guarantees that, if the Bill becomes law, the Government will not look to expand its scope to impact on Scotland’s independent, unique and distinct legal system. He must also acknowledge that he should not have the authority to attempt unilaterally to unpick such a fundamental part of the UK constitution. The Scottish judicial review process has evolved over many years and the result is a proper system of checks and balances that does not need interference from Westminster.
That separate and valued legal system means that most of the Bill will not impact on my constituents or on Scotland, but parts of it will, and that does not detract from my concern about the way in which the Government are operating towards the judiciary in England and Wales. It appears to me that the Bill is part of a broader drive to increase the power of the Executive, to limit oversight, and to reduce the ability to seek judicial remedy in the courts and to hold this Government and Governments after them to account.
I say a broader drive, because the Bill is moving through this place at the same time as the Nationality and Borders Bill, the Elections Bill, the review of the Human Rights Act and the Police, Crime, Sentencing and Courts Bill.
Each taken on their own merit should be cause for concern, but as a package they leave little doubt that the Government’s strategy is to roll back the rights of vulnerable groups, while simultaneously removing the checks and balances on the Government’s Executive power.
The Prime Minister’s decision to prorogue Parliament in 2019 was the first step on the road to an increasingly authoritarian style of government. Since the two high-profile defeats on article 50 and prorogation, and several High Court rulings on immigration and employment tribunal fees, the Government have been vocal in their criticism of the justice system. The Home Secretary herself referred to “lefty lawyers” and “do gooders” looking to hamstring the legal system. In reality, the Bill is a crackdown by the Government, who are unable to move past the frustration of high-profile defeats in the Supreme Court. Rather than asserting their Executive authority and removing checks and balances, the Government should be listening to calls from senior legal experts across these islands and their own review.
Lord Faulks, a former Conservative Justice Minister, wrote that Ministers should “think long and hard” before seeking to curtail the powers to the judiciary. He added: “Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
With that in mind, I urge Members to vote against the Bill and maintain the vital checks and balances in this crucial area of law.
Laura Farris (Newbury) (Con)
I, too, will focus my comments on the first part of the Bill, which concerns judicial review. I support the exclusion of upper-tribunal permission decisions from the ambit of judicial review—the so-called Cart decisions. That is a merit-based argument. Briefing notes I received state that removing the option of recourse to judicial review in immigration risks injustice, and I hope Members will not mind if I set out briefly why I do not think that is the case.
It is important to note what clause 2 on Cart decisions does not do. It does not mean that difficult immigration or asylum cases will not end up in the appeal courts. It is the case now, and will remain the case, that the most difficult cases concerning article 3 rights on freedom from torture, and article 2 rights on the right to life, are nearly always adjudicated in the Court of Appeal. That is because they have made a natural progression from the first tier to the upper tier and the Court of Appeal. All the clause does is deal with permission to appeal. The clause gives the applicant first the opportunity to go to the first-tier tribunal and seek permission to appeal, with the threshold being whether the case is reasonably arguable. They fail that. They go to the upper-tier tribunal and again say that they have a case that is reasonably arguable. That is refused. They then go to the High Court and seek judicial review. It is only that upper layer that is being removed.
In no other area of law, in either the private or the public realm, does the applicant have three bites of the cherry—not in employment law, not in family law, not in education law, community care, or local government. You cannot leapfrog a decision of the upper court or tribunal to seek recourse through another means. I have listened carefully to the arguments made by those on the Opposition Benches, and no one has yet defined why immigration, and immigration alone, should belong in a special category where people have an extra bite of the cherry.
The hon. Member for Bath (Wera Hobhouse), who is no longer in her place, suggested that it goes against every fair-minded decision of a Government to exclude Cart-type judicial reviews, but that overlooks the difficulty that the Supreme Court had when it determined this issue. Indeed, I say respectfully that it is rare to find such a nuanced decision in the Supreme Court. In the course of that judgment, at paragraph 91, Lord Phillips said:
“My initial inclination was to treat the new two tier tribunal system as wholly self-sufficient… Can it not be left to the Senior President…to ensure that the tribunal judiciary is so deployed as to ensure the appropriate degree of judicial scrutiny of decisions of the lower tier?”
Even Baroness Hale, who was the primary proponent, said:
“There must be a limit to the resources”
that we
“devote to the task of trying to get the decision right in any individual case.”
We on the Government Benches respectfully say that it must be right that, if the Supreme Court were faced with that decision again, it would answer in a different way. We know that because of Lord Hope’s remark in the Lords on 22 March that
“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
The other reason I support clause 2 is to do with the overriding objective that lies at the heart of all civil procedure and the issue of proportionality. I know that there has been some disagreement among Members about how many Cart judicial reviews succeed. The independent review of administrative law report put it as low as less than 1%, the Government say it is 3%, and Liberty, which argues strongly in favour, says it may be nearer 5%. However, we have to be realistic. On any reading, we have a system where over 95% of these judicial review cases go nowhere, yet we know that that is the most common form of judicial review.
That is exactly what Lord Dyson warned against when permission was given in Cart. He said that “resources are limited” and that we do not want
“a return to the pre-2002 Act days in immigration and asylum cases when the courts were overwhelmed with unmeritorious judicial review claims.”
Anne McLaughlin
I am a bit confused. The hon. Lady said that taking away Cart judicial reviews would not stop somebody going to the Court of Appeal from the tribunal system, so I just wonder what the route is. Perhaps I have misunderstood.
Laura Farris
For an applicant to end up in the Court of Appeal, they would win or lose at first instance and either appeal or be appealed by the Home Office, the upper-tier tribunal would give permission for that appeal, and it would be heard in the upper-tier tribunal. The applicant would either win or lose again, and then they would find themselves appealed to the Court of Appeal. That will not change where difficult areas of human rights law are engaged.
The issue here is where the upper-tier tribunal says, “No, we won’t give permission to hear your appeal,” and then the applicant goes to the High Court and seeks a judicial review application. It is that narrow aspect that is excluded by the Bill. It is important to clarify that, because I think there is some uncertainty about whether human rights are being excluded, and I am glad that the hon. Lady asked me.
Laura Farris
I will make a little progress, because I know that time is limited.
The Opposition frequently push Government Members on the issue of backlog and delay. In the early days of the pandemic, they were right to do so, but I do not think that they can sustain an argument where they simultaneously criticise delays that have arisen because of the pandemic and advocate a disproportionality in an area of litigation where over 95% of claims are unsuccessful, clearly clogging up court time.
The second issue that I would like to address is the new flexibility in quashing orders, and particularly the issue of suspended quashing orders. I read the IRAL report very carefully. It reached its conclusion by reviewing the Court of Appeal’s decision in the case of Hurley and Moore. When it found that there had been a breach of the public sector equality duty, the Court made a declaration of illegality rather than a quashing order because it wanted to give the Secretary of State room to comply. As I see it, clause 1 is in keeping with that.
A number of organisations have written to me to say that, while they perhaps understand the basis of the decision, they are generally opposed to suspended quashing orders where the provisions of a clause will be void. Respectfully, I think that fails to properly engage with what is at stake. The public sector equality duty is a really helpful starting point here. Let us look at the way those cases were litigated through the appeal courts in the early days. We had the library closure cases, with Somerset County Council, Gloucestershire County Council and Surrey County Council all losing public sector equality duty cases. We then had the care home cases, such as South West Care Homes v. Devon County Council, and the mental health cases. All of them were in 2011, 2012 or 2013.
What is most striking about public sector equality duty cases now is that they almost never succeed; actually, I could not find an example of one that had succeeded since 2015. It occurred to me that it is at least possible that the reason the courts will not engage with those cases is that they think it is too onerous to quash. I think that the Bill provides more scope, not less, for some of the progressive principles that can be advanced for a judicial review to succeed if it is not immediately the subject of a quashing order.
I also listened to observations made on the Opposition Benches about retrospective decisions and retrospective effect; what that would have meant in the Unison case and whether the Supreme Court would or would not have ordered the Ministry of Justice to repay the fees paid by litigants who were bringing claims during that period. I just do not think it is possible to read Lord Reed’s comments in that judgment and not find it was absolutely guaranteed that the Supreme Court would order the fees to be repaid. Let us look at clause 1(8) and (9), which set the criteria. The Supreme Court effectively applied them all and found that the repayment of fees was necessary, so I do not think it is a good example.
It is, however, worth recalling the case of HM Treasury v. Ahmed, which the Secretary of State mentioned in his opening remarks. That was a critical case, one of the first cases the Supreme Court heard, because it dealt with important issues of constitutional consequence and public interest. The Labour Government had done what any right-minded member of the public would think was sensible. They found three people who they suspected, but were not convicted, of terrorism offences. As a precautionary measure, they froze their assets. They believed they were entitled to do so under the United Nations Act 1946. They were, in fact, not entitled to do so and the Supreme Court found them to have acted ultra vires and quashed. We know that at least one Supreme Court Justice was nervous about that. Lord Hope said:
“I would however suspend the operation of the orders that I would make for a period of one month from the date of the judgment to give the Treasury time to consider what steps, if any, they should now take.”
What if they had had the power to suspend the order? We know the judgment was handed down on 27 January 2010. By 5 February, Alistair Darling had introduced the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. By 10 February, two weeks later, that had received Royal Assent. It was manifestly in the public interest for Parliament to have the opportunity to legislate on that. How much better if the Court had had the opportunity not to make a quashing order, but to suspend.
That brings me to my final point, which is something I do not think anyone on the Opposition Benches has engaged with at all: what the doctrine of nullity is really about. In private law, the Court has the opportunity to consider and to decide that something is unlawful, but in public law it does not just decide that; it quashes altogether. I am of the view that allowing some discretion, where the effect of a quashing order would potentially run contrary to the public interest or conflict with what might be the will of Parliament, offers a more constructive opportunity to resolve public law problems.
Anne McLaughlin
I thank the hon. Lady for again letting me in. Surely this is ordering judges to have a presumption in favour of prospective, rather than retrospective, quashing orders? We are not giving them the opportunity to use it—we are saying, “You will use it as a default position.” That is the problem.
Laura Farris
I am not sure I entirely agree with that. I do agree that clause 1 sets out the criteria they need to apply, but in reality they are common sense principles and I do not agree that the Court’s discretion is being fettered in the way the hon. Lady suggests.
Rob Butler (Aylesbury) (Con)
It is a pleasure—although always slightly daunting to follow my hon. Friend the Member for Newbury (Laura Farris)— to speak in this debate. I must start by declaring an interest. I served as a magistrate for 12 years prior to my election and spent almost five years as a member of the Youth Justice Board. It is on the subject of the magistrates and youth courts that I wish to focus my remarks. The proposals for changes to procedures in the magistrates courts strike me as sensible and balanced measures that will, in many respects, simply bring them into the 21st century. The new processes and procedures herald a marked improvement to the way courts run, saving time, improving efficiency and therefore helping to ensure speedier justice.
It is appropriate to echo the remarks of my hon. Friend the Member for Warrington South (Andy Carter) and mention the tremendous achievements in the magistrates courts over the past 18 months. Following the inevitable disruption caused at the start of the pandemic, the magistrates courts were incredibly quick to adapt to new methods to prevent delays to justice. With more than 85% of criminal cases falling entirely within the jurisdiction of the magistrates courts, they are absolutely vital to the overall smooth running of our judicial system. We should not forget that magistrates are volunteers. I pay tribute to them for all their efforts, alongside the staff of Her Majesty’s Courts and Tribunals Service, the legal representatives and other services, such as victim and witness support—the latter also volunteers.
The flexibility and adaptability of those working in the magistrates courts over the past 18 months is a clear demonstration of the capability, readiness and willingness of justices of the peace to embrace change.
I particularly welcome the digitising and streamlining of preliminary pretrial court proceedings via the common platform, the removal of unnecessary courtroom hearings, and the strengthening of links between Crown Court and magistrates courts. Creating the option for online written pleas will enable defendants to sit with their legal adviser at a time of their own choosing and submit the required information via the common platform. That must be preferable to waiting in a courthouse for hours on end for a hearing that will likely last just a few minutes.
Similarly, I believe that permitting an allocation decision to be made online or in the absence of the defendant, in the appropriate circumstances, will enable courts to progress cases and avoid unnecessary delays. This is especially welcome for indictable-only offences, where the appearance in the magistrates court is no more than a formality.
I am aware that there are concerns about ensuring that defendants will be properly equipped to make decisions about their cases if they are not physically in a courthouse. I share those concerns, so I am therefore very pleased that there will be safeguards to ensure that defendants have the right advice and support and, crucially, that a full court hearing will always be available when needed and considered to be in the interests of justice. I am grateful to Ministers in the Ministry of Justice for reassuring me already that especial care will be paid to particularly vulnerable defendants and to children.
The introduction of a new automatic online conviction and standard statutory penalty procedure is a further positive step. It has long struck me as disproportionate for someone to come to court if they have not paid for a rail ticket or have fished with an unlicensed rod. An online process that does not require the involvement of a magistrate seems a much more appropriate way of dealing with such cases. Of course, it will be necessary to ensure that only very low-level offences of such a type take place without direct judicial oversight, and I am pleased that the addition of any further offences to the mechanism would need to be explicitly agreed by Parliament.
The decision to abolish local justice areas makes further good sense. The current system can result in arbitrary borders that prevent a magistrate from sitting in a court just a few miles from their home if it happens to be in a different LJA. The proposals in this Bill will mean that work and people can be distributed according to need and availability. One consequence will be the ability for closer working between Crown Court and magistrates courts. That greater alignment of different branches of the judicial family is undoubtedly another positive step.
However, a few questions arise from the proposals to scrap LJAs. At present, each area has its own bench chairman, deputies, chair of youth court and so on—magistrates who volunteer to take on leadership and pastoral roles. It would be helpful to learn a little more from the Minister about how those functions will be carried out in future, and to have reassurance that magistrates will still have a degree of agency over decisions and practices affecting them directly. We also know that local areas can see different patterns of crime, distinct from one another. Until now, magistrates courts have been able to reflect that in their sentencing, so I am keen to hear from the Minister about how specific local factors will be reflected henceforth.
Of course, magistrates courts can only function well when there are enough magistrates to sit in them. The number of those on the bench has fallen dramatically in recent years. I am pleased the Government are now attempting to recruit more people to the magistracy, but it is important that magistrates represent all walks of life, all ages and all backgrounds, and I wonder whether the Minister might tell the House a little about how he hopes that might be achieved in the years ahead.
There are relatively few clauses in this Bill affecting the youth courts. There are provisions regarding the transfer of cases when a young person reaches the age of 18, but I will use this opportunity to repeat to the Minister and his colleagues in the Department my call for young people to be dealt with by the courts according to the age at which they committed their offence, rather than their age when they first appear in court, which is the current process.
I was pleased to introduce a ten-minute rule Bill on this subject last February that received support from across the House, including from some very learned and distinguished hon. Members. As I said then, it would be a relatively simple change to make in legislation, because in many respects, it does no more than correct an anomaly. For those affected, however, its effect would be profound because of the different sentencing options that are uniquely available in the youth jurisdiction. Such a change would enable young people to put their mistakes behind them and make a constructive contribution to our society. It would put more emphasis on preventing reoffending, which is key to reducing the number of victims of crime—something that we all wish to see.
The number of such cases may not be high, but they have a massive impact on the young people concerned. I heard only this week about the case of a boy who was arrested at 16 and is still waiting for his first court appearance three and a half years later, now he is nearly 20. That cannot be right, so I hope that as the Bill progresses through Parliament, Ministers will consider whether this could be the appropriate time and place to bring about a change that is supported throughout the justice system.
Much of our debate on the Bill has focused on measures that relate to judicial review. They are certainly very important, but we should not overlook the other positive steps that are being taken to improve our justice system. I am grateful to have had the opportunity to highlight the Government’s strong and sensible changes to magistrates courts’ proceedings, which I am confident will bring benefits to defendants, witnesses, lawyers, court staff and magistrates themselves, as well as to victims of crime. That is why I am pleased to support the Bill.
Dr Kieran Mullan (Crewe and Nantwich) (Con)
I welcome the chance to speak in this debate as a new member of the Select Committee on Justice. We have not considered judicial review in any great detail, but we have considered court capacity, the use of virtual hearings and remote technology, and the work of coroners’ courts.
We are all aware by now of the challenges that the pandemic has caused for court capacity, but I think we can be proud of, and should recognise, the enormous efforts to ensure that our justice system across the country continued in a more robust way than in many similar jurisdictions. I thank and pay tribute to court staff for their work to enable that, and I echo the positive remarks of my hon. Friend the Member for Aylesbury (Rob Butler) about magistrates who give their time.
Of course that does not mean that we do not face a backlog, but I think we should remind the Opposition, or what is left of them—certainly their spokespeople—that the backlogs that we faced prior to the pandemic were lower than some backlogs that victims faced under the last Labour Government. Outstanding cases at the Crown court were at just over 40,000 before the pandemic; they hit 50,000 under Labour. A quick search of Hansard does not produce the outrage that we have heard today from the right hon. Member for Tottenham (Mr Lammy) or that I suspect we will hear from the hon. Member for Hammersmith (Andy Slaughter) when he winds up. They were not so bothered about it when they were in government, but they seem particularly frustrated now.
However, let us be in no doubt that backlogs are a problem and we need to bring them down. That is important, because delays in justice have an impact on victims and the innocent: importantly, we lose witnesses and victims, which ultimately means that people who should face justice do not. That is why it is right that we look at ways to innovate and do things differently if it can help with the backlog. Of course there is always risk when we do things differently, but we have to weigh it up against the injustice for those who are waiting for their day in court.
The Justice Committee heard a variety of evidence about the benefits and drawbacks of remote hearings, which are similar to the benefits and drawbacks that we have debated in relation to remote healthcare. Rightly, victims’ advocates have highlighted that for some people, remote hearings are a real challenge, so I ask the Minister to outline the steps that the Government will take to protect vulnerable groups from being inadvertently disadvantaged by remote hearings and by other changes in the Bill.
As hon. Members have said, reform cannot take place instead of investment; funding must be provided to help us to address the backlog with extra sitting days and Nightingale courts. We have seen some good progress in that regard.
Yes, the justice system has historically faced cuts, but I want to take the opportunity to remind people that those cuts did not happen in isolation. At the time, £1 in every £4 spent by the Government was borrowed; we were spending in an unsustainable way. It is easy now to criticise cuts that were made, and perhaps the balance of cuts across all the Government’s work has not been correct—that is why many of us welcome the extra spending for justice—but to make out that those were easy choices at the time and blame everything on the cuts, when we know that ultimately the Government were reacting to a situation not of their making, is not fair.
I thank the very many hard-working people who are struggling to deliver the important function of coroners’ courts and who did so over the pandemic, but I have to say that I feel concern. As we move away from full hearings, we will need some very clear routes available for decisions when people choose not to have a full hearing. The Government talk about cases being uncontroversial and simple, but I am afraid that the harsh reality we have heard from coroners’ courts is that although they are overwhelmingly conducted with care and attention to families and with open and transparent process, that is not always the case. Coroners’ courts still reflect the style and approach of individual coroners.
I would not want the measures that the Government are introducing through the Bill to have inadvertent consequences where coroners took decisions in cases that would objectively have benefited from a full hearing, or that families might feel would have benefited from one. It would be good if the Minister outlined what opportunities families might have to challenge decisions that coroners make under the new legislation.
I want to make some brief remarks about judicial review. I think we have to recognise that access to justice, in the broadest possible sense, is a public good, but too often some of those involved in the provision of this public good see it as sacrosanct, and seem to believe that there is some Utopia where demand for justice is perfectly met. They often strive for that without accepting that the provision of justice as a public good must compete for public resources alongside the provision of other public goods, such as education, healthcare and defence. It is perfectly legitimate for a Government to consider whether public money spent on judicial reviews funded by taxpayers is public money that might be better spent on other public goods—or whether it might be better spent in the judiciary on a more effective way of securing access to justice than the present system of judicial review. There might even be a simpler, better use of the courts’ time. I personally can see a vast public good in a certain fox killer having fewer opportunities to waste the courts’ time with repeated failed actions, especially given the stresses on the legal system that we have discussed.
Of course, controversies in this area of law are not new to the Chamber. We heard earlier from the Justice Secretary how the Labour Government pushed these ouster clauses and saw their merits at the time. The Refugee Council has said:
“this Bill threatens to deny asylum seekers a fair hearing of their…claim… We urge the Government to take these criticisms seriously and to act on them.”
The council was not talking about the Bill that is now before us; it was talking about the Bill that the shadow Justice Secretary attempted to steer through Parliament.
I think that we have to take a step back, and recognise that the public expect to see a balanced use of public resources in the courts across all the expenditure of public money. I am frequently appalled by the disproportionate amounts spent on legal aid for individuals to challenge decisions, including decisions made through judicial review. Does that serve the interests purely of justice? Perhaps yes, but does it represent a proportionate or justifiable allocation of public good in our society? Certainly not, and I think the British public understand that.
The hyperbole that has been expressed today about the narrow changes that are being made to judicial review undermines the credibility of the Members making those claims. We have heard from my hon. Friend the Member for Newbury (Laura Farris) and others how restricted and limited these measures are. To suggest that people who have had a couple of bites at the cherry are being denied justice because they do not have the opportunity to make one further attempt is an exaggeration that undermines those Members’ arguments.
Bob Seely (Isle of Wight) (Con)
Much of the Bill is eminently sensible, and there is much in it to support. Like most people, I am pretty fed up with politicised lawyers endlessly trying to game the system. We need the application of common sense, and to call this Bill authoritarian is an absolute misuse of the term.
I will not speak for more than four minutes or so. I want to talk about how we can improve the general principles of the Bill in respect of coroners’ time and police time spent dealing with cases in which bodies are washed up on the coastline, and in particular about the need for the mandatory taking of DNA samples from people who are to be buried at sea. I thank the Isle of Wight coroner, Caroline Sumeray, for her advice on this, and indeed for her work on behalf of Islanders.
There were three places in the UK where burial at sea was allowed: Tynemouth in the north-east, Newhaven in Sussex, and one and a half miles south-west of The Needles, on the Isle of Wight. Now, I understand, the area off The Needles is the only place where burial at sea is legal. At present there is no legal requirement for DNA samples to be taken from the bodies of the deceased.
The proposal for DNA sampling originated from an action at the UK Missing Persons Unit, which at the time was investigating about 60 unidentified bodies which had washed up over the previous year—not all at once, I hasten to add. The pathology unit at the Home Office undertook to progress that action, because every investigation involving a body washed up at sea requires a pathologist—and an awful lot of police time—to discover where the body might have come from. There is also the emotional distress of families who give DNA samples in the hope that it might be a relative of theirs; and if Aunt Madge has recently been buried at sea and, sadly, parts of her are washed up, the family do not necessarily want to give DNA samples because it is an unnecessary process.
There are about 10 burials at sea each year, and once or twice a year body parts are washed up on the coast of the Isle of Wight. At the end of 2016 a lower arm was found, and early in 2017 a matching skull was washed up. Later in the year, a man’s body was washed up near Brighstone, having come from Devon.
In October, a headless torso was found at Brook chine. In 2018, a skeleton was found on Barton beach and a skull was found in St Helens, with another being found later in the year in Seaview. The year after, a lady’s skeleton was washed up from Fishbourne, although that dated back to the bronze age. Clearly the tides had brought it up from a beach somewhere around Britain and it had been washed up on the Island. This is most likely to happen after storms, which either break up a coffin or force a body on to the land. They are often discovered by dog walkers on the beaches, and that is clearly not the sort of thing that they want to see first thing in the morning.
While this is a constituency issue for me, it could affect a coroner or police force anywhere in Britain that has a coastline. If we had a requirement for DNA sampling prior to burial at sea, it would be easy for the police or the coroner to check against the database and make a quick distinction about where the body part had come from. Clearly, if the database had no matching DNA sample, it could be a suicide, a murder or someone who had fallen off a liner somewhere in the world, but if a DNA sample could be matched, it would save police time, save the coroner’s time and save the emotional distress of the families involved.
The costs of the coastguards, helicopters, police spotter planes and inquests all add up. One of the principles of the Bill involves using the coroners and the police to achieve more efficiency and, frankly, to do their work in a more productive way. I therefore believe that, as good as the Bill is, it could be improved by the facilitation of mandatory DNA sampling on the UK DNA database so that the police and coroners can quickly identify where body parts washed up on the UK coastline have come from.
Andy Slaughter (Hammersmith) (Lab)
I welcome the Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge) to his place and wish him well on his first outing for the Ministry of Justice. He might be tempted to reciprocate when he speaks, but as this is my third time in the job, that would be unnecessary, just like significant parts of this Bill.
I am sorry to be leaving the Justice Committee after a number of years, not least because of the able and consensual chairing of the hon. Member for Bromley and Chislehurst (Sir Robert Neill). I need not feel neglected, however, as so many members of the Committee have followed me to the Chamber today. This is almost like a meeting of the Justice Committee. With the hon. Members for Lanark and Hamilton East (Angela Crawley), for Newbury (Laura Farris), for Aylesbury (Rob Butler) and for Crewe and Nantwich (Dr Mullan) here, we almost have a full house. I commend all their contributions, and indeed the contributions of all other Members this evening. This has been an intelligent and considered debate that I hope will set a good precedent for the exchanges across the Dispatch Box.
Parts of the Bill are functional and unexceptional, and we will not make points for the sake of it. Indeed, much of part 2 has been revived from previous Bills that fell in the political mêlées of the past few years. The debate has shown, however, that there are serious concerns around part 1, as the shadow Lord Chancellor, the Scottish National party and Lib Dem spokespersons and others have indicated. I particularly want to mention the contribution from the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), who, with his usual thoughtfulness, went through some of the problems in clauses 1 and 2 in forensic detail. Despite having had the benefit of some very learned briefings from organisations working in the field, I heard him make some points that had not occurred to me or to them. I hope that he will be joining us on the Public Bill Committee in order to pursue those matters further.
I thank all Members for their contributions, and even though the right hon. Member for Haltemprice and Howden (Mr Davis) did not speak in the debate other than to intervene, we felt his presence in the room. His articles in The Guardian and elsewhere really have hit the nail on the head and shown that, despite what some Members have said, there are very real concerns about the Bill. It always needs to be said when talking about the Lord Chancellor that he was a protégé of the right hon. Member for Haltemprice and Howden, which we do not see very often these days. I am reminded of King Lear, rather than Edward Lear:
“How sharper than a serpent’s tooth it is to have a thankless child!”
Our primary concern with this Bill is that the proposals for judicial review are regressive and uncalled for, more especially when, as my right hon. Friend the Member for Tottenham (Mr Lammy) set out, many aspects of the justice system are in a state of profound crisis—aspects that these measures do nothing to address and much to distract from.
The Ministry of Justice should be devoting all its efforts to tackling the record court backlog and working to restore women’s faith in the criminal justice system. We have heard several times today of the more than 60,000 outstanding Crown court cases, due in part to the shortage of practitioners, with proceedings delayed because barristers cannot be found to prosecute or defend, and the shortage of judges and recorders. The Lord Chancellor recently admitted that he cannot say when the backlog will get back to pre-pandemic levels, but last week’s National Audit Office report enlightened him by suggesting that the backlog could still be 25% above pre-pandemic levels three years from now.
That is an important point. We often had this debate on the Justice Committee, and the hon. Member for Crewe and Nantwich said that backlogs have risen and fallen under different Governments. I concede that point, but the important point is that when the backlogs were high under a Labour Government they were quickly addressed and quickly fell back to low levels. There is little sign at the moment that the Crown court backlog is coming under control or is likely to reduce to acceptable levels.
Rape prosecutions and convictions are at record lows, even as reports to the police rise steadily. The Government’s own review said that Ministers are deeply ashamed of this dire situation and pledge to get prosecutions and convictions back up to 2016 levels by the end of the Parliament, but the Prime Minister said during his party conference speech that he cannot guarantee the target will be met.
We have recently seen two excellent reports on legal aid by the Justice Committee and the all-party parliamentary group on legal aid, and the Minister and I attended the launch of the latter last week. The reports document the collapse in access to justice since the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In the face of this unprecedented crisis, what is the Government’s legislative priority? Why are we here today? This is another political attack on the judiciary.
Weakening judicial review and attacks on human rights legislation have formed predictable purple passages in the last few Tory manifestos. The previous Lord Chancellor was a half-hearted cheerleader. To his credit he was half-hearted, so he had to go. The noble Lord Faulks proved to be too much of a lawyer and too little of a politician, so his review was set aside and a second consultation staged, and now we have this Bill.
Although it is correct to say that some of the threatened intrusions on the judicial role have not yet materialised, although we have yet to see the new Lord Chancellor at full stretch, there is plenty of mischief in this Bill, with the hobbling of judicial review by prospective-only orders, the fettering of judicial discretion by presumptions in favour of prospective and suspended orders and the ousting of judicial intervention in Cart and perhaps other cases.
The false dichotomy that the Government wish to argue, as in the recent speech by the Attorney General, is that democracy and the rule of law are two opposing forces that need to be brought more into balance by weakening the latter. Nothing could be further from the truth. They are two sides of the same coin, or rather one provides the tracks on which the other can smoothly run.
This Government’s true motive is to escape accountability for malpractice. It is one of the defining features of this Government that they simply do not believe the same rules should apply to them as apply to everyone else, and that starts with the Prime Minister and works its way down. An unbiased observer—I offer myself for this role—might say that the Government want to mute every avenue of accountability, from the BBC to the Freedom of Information Act and now the courts.
Specifically, the removal of the retrospective effect of a quashing order will have a chilling effect on judicial review. What is the point of the seeking of a remedy without redress? Victims of past unlawful state actions might not be compensated. Litigants who are similarly impacted before and after a judgment will be treated differently. Legal aid may be refused on the grounds that a remedy for past loss is not available. All in all, the Bill goes much further than the dry terminology of the statute suggests. It also goes further than the independent panel recommended: it saw no need for prospective-only orders and dismissed the idea of presumptions in favour of them.
As we have heard, the Bill will also abolish Cart judicial reviews, which are most often used in serious asylum and human rights cases but have also been used in welfare cases when someone was on the brink of being made destitute or homeless. That is the answer to the point about the fact that the success rate may not be among the highest—albeit it is still higher than the Government previously said it was—and the reason why there is a special reason for retaining such reviews. Those points have been made but they are, with respect, not good points, because Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations. The Bill’s impact assessment concedes that, saying:
“The majority of Cart cases relate to Immigration and Asylum, therefore those who lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
Cart reviews are an important safeguard and there is already a high threshold for bringing them. Moreover, the original proposal was based on wrong data, as I have said. I agree that the estimate of the percentage varied from the clearly wrong 0.22%, to the 3% that the Government now maintain, to the nearly 6%—30 times the originally cited figure—on which a number of learned and informed sources have made submissions to us.
Let me give just one example—there will be time in Committee to give a lot more—of the type of case affected. G was trafficked into the UK from her home country of Nigeria. Traffickers in both countries had brutally mistreated her and subjected her to serious physical and sexual abuse. While she was in the UK, she gave birth to a child, whom she looked after alone. The Government did not dispute that G was a victim of trafficking, but a tribunal convened to decide what support and protection she ought to receive went beyond the statements of the parties and decided that she was not, in fact, a victim of any trafficking or exploitation. This meant that she could be removed from the UK and would have resulted in her falling back into her trafficker’s hands.
The Cart procedure was used to re-evaluate the decision before the High Court. The Court found that the tribunal had made a series of errors leading to
“elementary and serious breaches of the principles of procedural fairness”
and that, as such, its decision could not stand. The High Court ruled that G’s case was not only arguable and should have proceeded, but that it was “bound to succeed” based on the strength of her claim. Without that ruling, the tribunal’s original “fundamentally flawed” ruling would have been put into effect, putting G and her child in the greatest danger imaginable. It is difficult to see why such a case should be refused the opportunity of legal remedy. That is certainly the opinion that the Bingham Centre for the Rule of Law and others have impressed on us in briefings, right up to and including today.
The Government’s statements on matters going beyond Cart suggest that the use of an ouster cause will serve as a template to abolish other types of judicial review in future.
The press release announcing the Bill stated that
“the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That is quite chilling in itself. The Government would do better to heed the words of Lord Neuberger, former president of the Supreme Court, who said last week:
“Ouster clauses…which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity”.
Perhaps with an eye on this latest legislative attempt to rein in our independent judiciary, he added that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected.”
Perhaps also the Conservative party is no longer a party of individual rights.
Part 2 contains a number of measures to increase the use of technology and online justice procedures, some of which, as I have said, have been rehashed from earlier legislation. The justice system has to adapt to new technologies, just as the rest of us do—some with more success than others—but technological change does not affect everyone in society equally. We cannot have a justice system where people are locked out because they do not have the means or the knowhow to navigate the digital frontier. We must make sure that this drive to digitisation leaves no one behind. Justice must never be sacrificed for efficiency.
If there is sufficient opportunity, for example, for taking advice on pleas to be heard before a tribunal for open justice, are corners being cut in the interests of rapid and economical disposal of cases? All those questions arise in revisions currently in part 2 of the Bill. We also have concerns around plans to set up an online procedure rules Committee. The Committee itself makes sense, but why, given that it is supposed to be a practical aid to practitioners, is it a creature of the Lord Chancellor, who merely has a duty to consult the Lord Chief Justice and the senior president of tribunals before making amendments to the rules?
The last major area of concern we have is in the provisions relating to coroners’ courts. Again, there is a danger that, in a rush to reduce unnecessary procedures and facilitate greater online participation, people who are less capable of navigating the new system will be excluded. There is nothing to address existing problems with the coroners’ service and, on Thursday, we be will debating the Justice Committee’s excellent report—I was a member of the Committee at the time—which raises a number of serious issues, including, in particular, the inequality of arms, as we have heard from many Members today, faced by many bereaved families who are not entitled to legal aid at inquests where the state is representing. We can discuss that in Committee and we can discuss it on Thursday.
The peremptory response and dismissal of many of the Committee’s major recommendations is something that the Government should look at again. It is another example of why this Bill is not fit for purpose. There is too much focus on areas where the law works well, and too little where it is failing. Above all, it is an unforgiveable distraction at a time when all focus should be on getting the justice system back on an even keel. The Bill seeks to undermine the rights of the individual against the state and it looks like another attempt by this Government to stoke a political war with the judiciary—something that would be more recognisable in Hungary or Poland.
We can try to salvage the administrative good from the political bad as the Bill progresses through both Houses, but there is no way that any Member of this House who cares about the rule of law or the checks and balances of our constitution should be supporting this Bill on Second Reading tonight.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
I am grateful to all right hon. and hon. Members who have contributed today. It is an honour to follow the hon. Member for Hammersmith (Andy Slaughter). He asked if he should be welcoming me to my place; I am grateful to him for that. I also welcome him. I know that he performed his role for many years, from 2010 to 2016, but it is good to see him back in his place. I look forward to debating with him.
This is my first opportunity to speak in the role of Courts Minister, so I want to take a moment to put on record my enormous gratitude to all those on the frontline in our court system, including our judiciary, practitioners, all court staff and clerks. They have all put in one hell of a shift during the pandemic to keep justice going in this country. It makes me proud to be British.
The one thing that I would stress, having visited the courts and seen how they have had to adapt, is just how much social distancing rules disrupted the judiciary. The 2-metre social distancing particularly affected juries in the Crown court. It has been very difficult. For that reason, a significant backlog has accumulated and we have been open about that. The key thing is that we have been active in bringing forward positive measures to address that backlog. We provided £250 million of funding during the pandemic, which enabled us to lift the limit on sitting days in the Crown court, and rapidly to roll out technology to keep justice going online during lockdown, which was incredibly important. Of course, we also brought forward our famous Nightingale courts, which have done an amazing job in helping us, particularly with bail cases.
This Bill plays its part in those positive steps to address the backlog. The common thread is streamlining justice: digitising in-person processes where appropriate; removing Cart judicial reviews, which use disproportionate resource; and enabling more triable either-way cases to be sent from the Crown court to the magistrates so that Crown courts have more capacity for dealing with very serious criminal trials, potentially including rape and murder. The Bill will build on the lessons of the pandemic. It streamlines our justice system by digitising a range of procedures so that we bear down on the backlog and at the same time improve the day-to-day experience of our constituents in the court system.
We have had a wide-ranging debate. Inevitably, the focus has been on the measures on judicial review. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, made a wonderful speech, not least when he extolled the glories of English liberty. He said that the judicial review reforms are measured and focused, and I do not think that he would be described as an enemy of the judiciary or someone who supports revolutionary measures. These are sensible, proportionate measures.
The right hon. Member for Tottenham (Mr Lammy), with whom I look forward to debating further, said that these measures weaken quashing orders. I take completely the opposite view. The measures strengthen quashing orders and thereby strengthen judicial review. The best way to prove that is to refer to an important and very real case study, which many hon. Members will remember, particularly those, like me, who served in the last Parliament and represent rural constituencies.
Members may recall the problems caused in 2019 when Natural England decided to revoke general licences for shotguns—shotguns that enabled farmers, landowners and gamekeepers to shoot pest birds. That happened in response to a threatened judicial review. The decision created immediate widespread chaos for licence holders, who were left without the necessary legal certainty as to how they could protect their livestock. I know this because I was on the receiving end of emails about the issue from my constituents, as many other hon. and right hon. Members will have been.
The uncertainty continued for a period of seven weeks, until Natural England was able to issue new licences. It is not for me to speculate about how the judicial review might have proceeded if it had gone right through the court. However, we can refer to the advice that might have been given to Natural England. Had the remedies included in clause 1 of this Bill been available at the time, we can suppose that Natural England might have been more willing to contest a judicial review in the knowledge that, even if the existing licence scheme were found by the court to be unlawful, the court had the ability to act prospectively—that is, to protect past reliance on old licences, which, after all, was made in good faith; farmers using those shotguns would have done so in the belief that they were acting lawfully.
In my view, we should always seek to avoid, where possible and without good reason, acting retrospectively when the person concerned could not possibly have known what the case would be in the future. A remedy of suspension could also have been used, because of course it took three months to bring forward the new licences. If the suspension had been for that sort of period of time, we could have avoided detriment. That is the point. Those who brought the case would still have got their “victory in court”, as my hon. Friend the Member for Bromley and Chislehurst talked about earlier, but the key point is that we would have spared our constituents detriment. That is why these measures are positive. That is why they support a very important principle of judicial review that has not been mentioned, which is better public administration of the law in the best interests of our constituents. As the National Farmers Union said at the time, “People have been left without a legal means to control problem birds. Their inability to protect livestock, crops, wildlife and livelihoods in ways which the law has until now allowed has left them concerned and angry.” Now we would have a way to help them in practice.
Turning to Cart judicial reviews, again there was lots of passionate argument on this very important point of the Bill. My right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright) made one of the most fundamental points about parliamentary sovereignty where we have to question whether it was the intention of this place to legislate so that appeals would go beyond what is effectively the superior court of appeal within the jurisdiction of the tribunal. We think that was not the case.
My hon. Friend the Member for Newbury (Laura Farris) made an absolutely brilliant, barnstorming speech. On Friday she took apart Labour’s case for fire and rehire and today she has taken apart its case on Cart JR. She asked the very important question of why immigration should be the exception when so many other jurisdictions of law do not have, with no offence to the hon. and learned Member for Edinburgh South West (Joanna Cherry), three bites at the cherry. This is a very important point. The idea of having a superior court like the upper tribunal is absolutely consistent with the principles of article 13 of the European convention of human rights, so three bites at the cherry should not be needed to be consistent with that article of human rights. That is a fundamental point and we respect it with our reforms to judicial review.
Turning to the right hon. Member for Tottenham, he said that he was young and naive when he supported remarkably similar measures back in 2004. I think it would be remiss of us not to have two bites at the cherry with regard to Labour’s Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004. He may have been young and naive but the Prime Minister was Tony Blair, and he was not young and naive. Why does the right hon. Gentleman think that the Government led by Tony Blair thought they should bring forward a Bill like that—because it was some radical assault on the judiciary?
Let us remind ourselves of what that Act did. It contained a provision to remove judicial review from immigration and asylum appeals. That probably sounds a bit familiar. What was the justification? I hope that the hon. Member for Glasgow North East (Anne McLaughlin) is listening. The justification, as revealed by the right hon. Gentleman in Committee at that time, because he was the Minister concerned, was that only 3.6% of cases were successful. That was the argument that Labour used in 2003 and 2004: does it ring any bells? What was the method? The method was an ouster clause, but not any ordinary ouster clause—not a tightly drawn ouster clause like the one in this Bill—but an ouster clause drafted so widely that in Committee the then Constitutional Affairs Minister admitted that it was the mother of all ouster clauses. Who was the Constitutional Affairs Minister? It was the right hon. Gentleman.
Mr Lammy
I hesitate to interrupt the hon. Gentleman in his oration, because he was getting into his groove, but I would just say to him that it was dropped—it was never enacted, so poor it was.
James Cartlidge
They pulled it because they were going to get hammered in the House of Lords.
On Cart JR, the hon. Member for Bath (Wera Hobhouse) seemed to imply that somehow an ouster clause is fundamentally against the interests of holding Government to account. Every day that this place is sitting, hon. and right hon. Members will stand up and speak on behalf of their constituents on serious matters. I once spoke in a debate on the Adjournment—the one where our former colleague spoke many times. I spoke on a very serious case in my constituency of a very vulnerable man who had had a stroke and had, I felt, been let down by a company in my constituency. I was able to name that company in this House and hold it to account, as we all do. On what legal basis was I able to do that? It was article 9 of the Bill of Rights 1689—effectively a very ancient ouster clause that ensures that proceedings in this place are not subject to the courts, as you well know, Madam Deputy Speaker.
We all benefit from an ouster clause, and it helps us to hold the Government to account.
Joanna Cherry
It was generously suggested earlier that the Minister might respond to my query about the impact of clause 2 on the treaty of Union and the Scotland Act 1998. It is a slightly complicated point, but if I write to him about it, will he get back to me, because it is a really important point? If the Law Society of Scotland is right, the Bill needs a legislative consent motion.
James Cartlidge
I have to be honest with the hon. and learned Lady: it is very kind of her to ask me to write to her, because that is what I would have suggested in my answer anyway. Speaking to her earlier question, we do not think a legislative consent motion is needed, because the Cart judicial review only covers reserved matters.
Coming quickly on to the online procedures, these are incredibly important. I know from my own business—we started doing mortgages online in 2005—that those procedures we are used to doing face-to-face can be conducted online, provided there is good software and safeguards and support in place. I refer to the speech of my hon. Friend the Member for Crewe and Nantwich (Dr Mullan). He is a brilliant MP. He is my parents’ MP, and they tell me he is a fantastic campaigner. He asked, as did the hon. Member for Battersea (Marsha De Cordova), who was here earlier, what help would be provided for vulnerable users. I can assure my hon. Friend and the House that we take that incredibly seriously. With all these procedures that will be taking place online, or at least where there is an option to go online, there will be strong support and safeguards in place, in particular to protect vulnerable users. In those key choices of, for example, entering an early plea online, there would always be the option for the person concerned to ask for their case to be heard in the flesh in the traditional way.
I have a few final points. We had a number of other excellent speeches. My hon. Friend the Member for Aylesbury (Rob Butler) served as a magistrate before coming to this place. We are all proud of the excellent work of our voluntary judiciary. A number of my hon. Friends, including my Parliamentary Private Secretary, my hon. Friend the Member for Hertford and Stortford (Julie Marson), have been or are magistrates, as I assume have Opposition Members. I would love to meet them to talk about what more we can do to support magistrates. My hon. Friend the Member for Aylesbury praised the very important measures in the Bill, not least the measure that will ensure we can remit cases from the Crown court to the magistrates court. That is so important because it frees up time in the Crown court to hear those important criminal cases that are backlogged—the rapes, the murders and so on.
It is a great honour to be asked to become a Minister in the Department responsible for the world’s greatest justice system. It is so great is because of its fundamental core of the rule of law and the independence of the judiciary. If we are to sustain that system not just beyond covid recovery, but for the long term, we need to keep modernising our courts and to digitise and use technology as much as possible, while balancing that out with safeguards for the vulnerable. It is quite simple: with this Bill we can build back better and beat the backlog. I commend the Bill to the House.
Question put, That the Bill be now read a Second time.
Judicial Review and Courts Bill (Second sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Q
Richard Leiper: My name is Richard Leiper QC. I am a specialist in employment law and related civil matters. I am also chair of the advisory council of the litigant in person support strategy. In that capacity, I was part of a shadow online rules committee that was chaired by Mr Justice Langstaff.
André Rebello: I am André Rebello. I am the senior coroner in Liverpool and the Wirral and the honorary secretary of the Coroners’ Society of England and Wales, the judicial association for coroners. I have been a coroner for over 28 years, and I welcome, with some caveats, all the provisions relating to coroners in the Bill.
Andy Slaughter (Hammersmith) (Lab)
Q
André Rebello: A coroner’s jurisdiction is inquisitorial. It is an inquiry; it is not litigation. In the vast majority of inquests in which the state is represented—apart from some very high-profile inquests—those representing the state are actually representing, in effect, a body corporate, to provide a voice to an organisation. They often facilitate the proceedings, assist the court and, more often than not, assist bereaved families to understand the issues before the court.
Andy Slaughter
Q
André Rebello: As you will recall from the Justice Committee hearings with the chief coroner, the deputy chief coroner and myself, more than 95% of inquests are heard by coroners sitting alone. The coroner has an enabling role, and it is the coroner who carries out an inquiry. Only the coroner can call evidence, and you will also recall that the coroner’s court is the only court where no one actually brings a case to prove. We are led by the evidence, and the coroner’s role is to level the playing field.
Andy Slaughter
Q
André Rebello: Where there is representation, you should recall that from section 41, where the properly interested persons are identified, they have rights with regard to disclosure of advance information, but thereafter their duty is to assist the court in finding the true facts as to who the deceased was, when and where they died, and by what means and in what circumstances they came by death in certain cases. That is all done without determining criminal liability by a named person or any question of civil liability. This is an inquest, not litigation.
Andy Slaughter
Q
André Rebello: Lots of things caught my eye, however, I am a judge and not the Executive. It must be for the Executive to make policy. However, I will reiterate the issue of the national shortage of pathologists desperately needs addressing. The fees have not been increased for over 20 years and that is something which must affect the number of pathologists available to facilitate coronial investigation.
Andy Slaughter
Q
André Rebello: I have seen the Government’s response to that. However, being at the coalface and knowing the lack of pathologists across the country, something needs to be done.
The Chair
Richard, do you wish to respond to this question?
Richard Leiper: No thank you.
Antony Higginbotham (Burnley) (Con)
Q
Richard Leiper: One of the things that people need to appreciate about the conception here is how broadly it could be applied. It is intended or, at least, it empowers there to be rules which cross employment tribunals, first-tier tribunals, all civil proceedings and all family proceedings, and it would need to be dealt with on a very narrow incremental basis.
I see two particular issues. First, there is not an existing infrastructure for an online process. Essentially, this rule committee would be laying rules which could be seen to tread on the toes of the existing rule committees for civil procedure, for family law, for employment tribunals and it would set down rules which somehow put in place the process which, for example, would tread on the toes of an employment tribunal—so, how a claim was initiated.
The online rule committee would be setting a rule which provided a wholly new way of a process being initiated. That would need the buy-in and support of the tribunal process, because there is not, as yet, the underlying infrastructure. That is in contrast, for example, to the civil procedure rule committee, where the entire infrastructure of the civil court process is there, and the judges know where they fit in and what they are supposed to be doing. Here, this has judges being told that there is a new process which has an online procedure, and they will not have a clue how that is supposed to operate.
If you start broadening it, it becomes cross-jurisdictional. For example, someone who wants to bring a claim against their employer that involves a breach of contract claim and an unfair dismissal claim, but one of which would normally go to a civil court and one to an employment tribunal. How can that be pulled together? Who would be the judge that dealt with it, and how would the procedure move forward? These are enormously difficult questions, which brings me to a second point.
The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members. To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough. That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.
For example, I have no knowledge at all about family court proceedings—how they begin, how they proceed, or what the interests of the various parties would be. Yet, if there is just one practitioner, who could be a barrister, a solicitor or a legal executive—each of whom have different perspectives on how the system operates, how it impacts on clients, other parties and so forth—there will not be the wealth of knowledge, even with consultation with people who do know, to enable effective online rules. The composition of the committee is my single greatest concern.
Antony Higginbotham
Q
Richard Leiper: I could not agree with that more. I think it is exactly the right concept to have. It will help litigants. There is provision so that those who do not have the means of doing things online would have the alternative of doing so through more traditional mechanisms, but I completely agree with the process because it should simplify the system to enable people to access justice more freely.
I could not agree more with the underlying concept. It is more a matter of ensuring that the infrastructure is in place to carry that through, so that it can become effective. That has two parts. First, it means having a properly composed committee with the expertise that can be brought to it and, secondly, having the infrastructure behind it so that it is not just a rule committee setting what needs to happen on high, but it gets the buy-in of everyone who will implement it and of how it will operate.
Alex Cunningham (Stockton North) (Lab)
Q
Richard Leiper: I am not one for large committees, which can be counterproductive, but we are talking about an enormous amount of work that will need to be undertaken across a wide range of practice areas. I suggest that the composition was akin to that of the civil procedure rule committee and of family law, so having more judges and more practitioners. The committee has only one person who can bring the knowledge of the lay-advice sector, whereas I think both the civil procedure rule committee and the family procedure rule committee each have two lay members. It needs a wider composition akin to those of the existing rule committees—which seem to operate perfectly successfully—where people are able to bring together the knowledge and direction of what they want to achieve through the online rule committee, but also bring particular practice or individual knowledge to the development of those rules.
Alex Cunningham
Q
Richard Leiper: I guess that the biggest risk is of technological failure of some kind, because this is wholly dependent on having the underlying technology operating successfully. If there is a failure, then it could lead to disaster. It is about ensuring that there is the funding and knowledge behind it to be able to support a process that would need to be implemented in a small area at first—I would think—ensuring that it was successful, and then gradually broadening it so that one could have confidence in its effectiveness. It is about having the comfort that there is going to be the technological and financial support behind it to ensure that it works.
Alex Cunningham
Q
Richard Leiper: I suppose there are two answers to that. One is yes. The other, which is my personal view, is that it seems to reflect the processes that are already in place into the existing procedure rule committee. This appears to have been the accepted approach since about 2005, and it seems to be replicating that. It does seem to give a substantial power to the Lord Chancellor in this regard, which I personally find surprising. However, it seems to be the way that things have operated for some time.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Q
André Rebello: Perhaps I misspoke. When a coroner sits alone, the coroner still hears evidence, and witnesses still come to court. It is just that there is no representation for any of the interested persons; the coroner hears evidence and makes finding and determinations. There is a real issue, though, with remote hearings in that, although many people have found advantages with them, the coronavirus easements did not apply to coroners’ courts. Coroners’ courts have only been able to work through remote hearings by using rule 17 to receive video evidence.
The provisions in this Bill are to bring coroners’ courts in line with other courts. However, there is a real issue in regard to the Equality Act 2010; not everyone can participate in the rule of law and in open justice through remote hearings. Any judge presiding has to be very careful to make sure that everyone can participate. I suspect there are more disadvantages in remote hearings than in having everyone in court, where you can fully appreciate how people are following the proceedings. In the 95% of cases where there is no representation, the coroner still hears evidence. It is not as if the coroner is just reading statements; evidence is still heard.
Dr Johnson
Q
André Rebello: With regard to remote hearings or with regard to—
Dr Johnson
Q
André Rebello: No. Basically, with remote hearings, there are all kinds of AV infrastructure challenges with regard to recording what has been said, and people with hearing difficulties being able to follow Zoom or Microsoft Teams. Technically it is quite difficult. It is also difficult for a coroner to evaluate evidence, because they do not have the people in front of them to judge.
Further, there is a danger with remote hearings that we will lose courts. If people can have all hearings remotely, there is a danger that we may not have a court infrastructure in future, for when justice needs to be seen to be done. The correct procedure in my view is that most things should be dealt with in court, and remote hearings should be used where necessary, but that should not become the norm.
Dr Johnson
Q
André Rebello: Under the Coroners and Justice Act 2009, the coroner can receive evidence by video, under rule 17 of the inquest rules. I have certainly received evidence from Australia and, I think, South Africa, with doctor witnesses who had moved overseas and then given evidence. I see no reason why coroners should not receive evidence from overseas. However, if people can attend, it is important, because it is a lot easier to give an explanation about the means someone comes by the cause of death, if everyone is in the courtroom, and everyone can follow the proceedings.
If Parliament brings in remote hearings for coroners and brings them in line with the Courts and Tribunals Service courts, the Chief Coroner will have to issue some very firm guidance on how and when it is used, because I do not believe it should become the norm.
Angela Crawley (Lanark and Hamilton East) (SNP)
Q
André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.
Marco Longhi (Dudley North) (Con)
Q
André Rebello: I have no problem with that proposal, that being another tool in the bag, as and where it is necessary, that is needed. My own preference is to go into court and record the hearing that I would have had, so that people can apply for a copy of what has been received and they can actually hear what has occurred. Certainly, it takes a lot longer to write down a considered decision than to go into court, go through the evidence orally and speak to it. Something that could take me five to 10 minutes in court, could take me an hour and a half to write down the issues, the law being applied, the rulings, the findings, determinations and conclusion, and then all the reasons which you would need for a considered judgment. That would be far, far more time consuming and may well take up far more coroners’ time. I appreciate not all coroners have access to courts all the time, and they cannot just go into court, so this is a very useful proposal, which I am sure will be used as and when needed.
Tom Hunt (Ipswich) (Con)
Q
André Rebello: Absolutely. We should bear in mind that coroners are judges like any other judge, and every judge is an independent judicial office holder. No other judge, other than a properly constituted appellate court, can tell another judge how to decide something or do something. However, it is important to have guidance to ensure consistency not only between coroners, but internally for each coroner. What you have to bear in mind is that every coroner determines the facts of the case on the very facts that are before the coroner. No two cases are actually the same. If the Chief Coroner is minded to issue guidance, that can only help to make these things work.
When you look at the provisions, the ability to merge coroner areas is something that has been long needed, because at the moment you can only merge unitary authorities, not parts of those authorities and that has delayed the coroner reform project. It is sensible that the disapplication of reportable deaths under covid continues because we are not out of the pandemic. On remote hearings, we should be brought in line with the Courts and Tribunals Service, with some guidance to ensure consistency, so that that facility is used where necessary, but not overused, because the rule of law and open justice is very important and people should be able to attend to see justice being done.
As we have just discussed, written inquests, without going into court, will have their need when coroners are struggling to get a court. The ability to discontinue cases when we have not ordered a post-mortem is long over needed. Occasionally, we will have a GP abroad who knows the cause of death and there is no one else qualified to give a cause of death. The only way the coroner could open up the facility to discontinue that case would be to order an unnecessary post-mortem. The proposal will enable coroners to open an investigation and when the GP returns, to discontinue and have the death registered.
That does raise another issue that the Bill does not cover, and I am sure that Members will be aware that the sunset clause in the Coronavirus Act 2020 expires in March next year. The law used to be that a doctor had to treat a patient in his or her last illness and, relying on regulation 41 of the births and deaths regulations, had to have seen the patient within 14 days of death, or seen the body after death. The Coronavirus Act gave an easement, enabling 28 days to be used, whereby any doctor had seen the patient and any other doctor could see the body after the death. It looks as if that part of the Coronavirus Act will expire before Parliament has a chance to bring into force the medical examiner and death registration provisions. There will be a big lacuna in the work coroners are carrying out. If doctors are not seeing patients face to face and cannot issue death certificates, far more cases will be unnecessarily reported to the coroner. If there is any way to continue that coronavirus easement on death certification, it would be greatly appreciated, particularly by the bereaved.
Janet Daby (Lewisham East) (Lab)
Q
“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”
It sounds like you may agree, Mr Rebello. To what extent do you think online pleas are compatible with the principles of open justice?
André Rebello: I am not sure that is a matter for a coroner, because I deal with inquisitorial proceedings in which there are no pleas.
Richard Leiper: This might relate to the Crown court part of the Bill, which I do not think either of us deals with. Online pleas would be an aspect of the criminal process.
The Chair
Three questioners wish to be called a second time. I will call them in the order in which they indicated.
Alex Cunningham
Q
Richard Leiper: I should not. I sit as a recorder in the Crown court, but I would not hold myself up as having the necessary expertise.
Alex Cunningham
Q
Richard Leiper: Again, that is an issue for the Crown court section of your discussion, rather than the civil side of things.
Dr Johnson
Q
André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.
I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.
Andy Slaughter
Mr Leiper, am I okay to ask you about employment tribunals?
Richard Leiper: You can.
Andy Slaughter
Q
Richard Leiper: I do not see any particular issues with them, but they do seem primarily administrative in that they are reflecting changes. There are issues about the composition of the tribunal, which I suspect some people may have concerns about. There has been quite a substantial shift in tribunals being presided over by a judge alone rather than being supported by members, for example, but in my experience, that has not been unsuccessful. The provisions seek to further that, as I understand them.
Andy Slaughter
Q
Richard Leiper: Yes. On where it fits, I do not know why, historically, it has not fallen within the Ministry of Justice; it has always been slightly out on a limb in that it has not.
Andy Slaughter
Q
Richard Leiper: As I understand it, they are desperately trying to recruit more judges, which is an underlying problem. Another problem that I do not think the Bill would address is the financial support and infrastructure for employment tribunals. Individual employment tribunal centres are essentially fractured in the IT that they have, as I understand it, and that has caused significant problems, particularly at the beginning of the pandemic, when remote hearings were almost impossible because the tribunal just lacked the software and infrastructure to be able to do them. There has been a chronic underfunding of the tribunals system for a very long time, and if the backlog is going to be dealt with, the system desperately needs that support.
Andy Slaughter
Q
Richard Leiper: Yes—well, not problems, but it has meant that more people have been able to bring their claims. I do not see that as a problem, but it has created more cases that need to be dealt with, yes.
The Chair
I thank both our witnesses for being present today and giving evidence, which I am sure the Committee has found very useful indeed. We will now move on to the next panel of witnesses.
Examination of Witnesses
Sara Lomri, Ellie Cumbo and Louise Whitfield gave evidence.
The Chair
We are now going to hear evidence from Sara Lomri, deputy legal director at the Public Law Project; from Ellie Cumbo, who is head of public law at the Law Society; and from Louise Whitfield, who is head of casework at Liberty. We have until 3.30 pm for this panel, and we will try to make sure that the questions are fairly sharp. If the answers can be equally sharp, we will get more questions in and I am sure it will be much more fruitful. I can see two of the three witnesses on screen, and the third witness is present in person. First of all, can each of you briefly introduce yourself, and then we will open it up to questions?
Sara Lomri: Hello, I am Sara Lomri. I am the deputy legal director at the Public Law Project.
Ellie Cumbo: Good afternoon, my name is Ellie Cumbo, and I am the Law Society’s head of public law.
Louise Whitfield: I am head of legal casework at Liberty. I will be talking on behalf of Liberty, but I have been a judicial review specialist for 20 years, so I may refer to my experience in practice previously.
Andy Slaughter
Q
Sara Lomri: I am happy to go first, and thanks for the question. Ultimately, the short answer is no, they are not justified. IRAL, which you were talking about this morning—Lord Faulks’s review—asked for lots of evidence. They were asked to review administrative law in a really short timeframe, and they were not able to go into the kind of level of research detail that we would have liked them to, but they nevertheless did a valiant job. They gathered evidence from right across the public law world. Although some of their recommendations are slightly mirrored in the Bill, the Bill in fact goes so much further, and we really cannot see the evidence base for the proposals put forward in the Bill. The Government say that the proposals will, for example, give judges more flexibility, save time and money and promote the rule of law. We think exactly the opposite. I am happy to go into that in more detail now, or to let my colleagues answer and come back in.
Andy Slaughter
Q
Sara Lomri: Absolutely not; in fact, quite the contrary. We think that clause 1 will draw judges further into potentially political ground where they will be asked to look at the impact of implementation of the order, and they may be drawn into further satellite litigation around what order is available.
I think it is fair to say, and I do not think this came out in any of the evidence given this morning, that JR is a remedy of last resort. As a solicitor, I represent individuals who bring judicial review. The cases are about hospitals and care homes closing, policies discriminating against service personnel and disabled children being denied proper care. It absolutely is a last resort. It is really hard to access legal aid for judicial review, which is heavily restricted.
It is a very low-volume jurisdiction. Around 4,000 applications are issued a year and, of those that get permission, only a third or so proceed to trial: that is fewer than 1,000 cases a year. Of course, a few of those cases will feel very political to the Government, but that really is the absolute minority of judicial review cases—which, in any event, is a low-volume jurisdiction. I will leave that point there.
Ellie Cumbo: It is not for the Law Society to speculate on the motives—we are interested in the effect. I want to draw particular attention to the proposal to create prospective-only quashing orders, which appears in clause 1. It is important to understand that that is a drastic new suggestion that did not arise in the report by the independent review of administrative law. Its effect would be to remove a remedy from a person who successfully challenges a decision and proves that it is unlawful. Is it not the most basic requirement of a justice system that, if someone brings and wins a case, they are entitled to an effective remedy? The proposal really is very difficult to justify, and is a radical departure from the expectations that I suggest all of us—including all of your constituents—have of an effective justice system.
The point that we are most concerned about, which also appears in clause 1, relates to the statutory presumption. It is less drastic, in the sense that presumptions do, of course, exist in the law. However, it is difficult to understand the justification for creating a new set of remedies and then creating a presumption that those are the default remedies, in the absence—because there can be none—of any evidence as to their effect as a remedy. We are concerned that there is simply no justification for the Government’s own rationale for those particular provisions in clause 1.
Louise Whitfield: I would like to add that I think there is no justification, because there is no evidence the proposals will improve public-body decision making. One of the main benefits of judicial review is that it holds public bodies accountable—not just central Government, but all sorts of public bodies that make decisions affecting people’s day-to-day lives. If it improves public body decision making, we would expect to see reforms that were going to help that.
In actual fact, Liberty thinks that the reforms will hinder the ability of public bodies to make good decisions because they will be tempted to gamble more. The proposals create a risk of incentivising the public bodies because they will not have to put right the wrongs that are found by the court. It will buy them a couple of years while the case is fought out, and they will know that there is a good chance of getting a prospective-only remedy or some suspended quashing order, even if it is found that the policy or decision was unlawful. That is the other piece of the jigsaw: it lacks any justification for saying that the proposals will improve the quality of public body decision making.
Andy Slaughter
Q
Sara Lomri: That is right. We say that the best evidence puts it at around 5.7%. We are particularly concerned that, in response to IRAL, the Government agreed that there should be judicial supervision of the decisions of the upper tribunal, particularly in relation to refusals of permission to appeal, citing the significant cost as a reason to abolish Cart JRs.
In actual fact, the total cost save is around £364,000 to £400,000 a year. The data relied on by IRAL was incorrect—it has agreed that it was incorrect—and, in fact, it looks more like 5.7% to 6% of Cart JRs are successful. In fact, there is not a significant cost. It is £364,000 per year which, given the constitutional principle at stake, is not a significant cost.
Andy Slaughter
Q
Ellie Cumbo: I would just say again this is a really drastic suggestion. Remember, it is for Parliament, not Government, to decide when to oust the jurisdiction of the courts and remember that the effect of it is to prevent a remedy when a decision has been found to be unlawful. The importance of that should not be underestimated. Parliament is supreme and has that right, but it must be considered on a case-by-case basis, as long as the circumstances are appropriate. We would welcome an indication from Government as to when they would consider it appropriate to ask Parliament to pass future ouster clauses.
Sara Lomri: I would tie it back to an article by David Davis on 25 October, in which he talks about the Government’s plans to restrict the use of judicial review in this Bill as an obvious attempt to avoid accountability. He refers to previous attempts by previous Governments, so obviously it is not just this Government, but David Cameron’s Government and before that Tony Blair’s Government attempting the same thing in a different guise. PLP would say that consideration of ouster clauses is constitutionally really problematic. We understand that it comes up from time to time, but it is not in this Government’s best interest to do that. It will really impact the way in which decisions by this Government and future Governments can be held to account.
Louise Whitfield: I echo those points. Liberty’s concern is that this is the death of judicial review by a thousand cuts. It would chip away at the fundamental right of citizens to challenge Government and other public-body decision making. If we start down the road of ouster clauses, the question is when will it stop and what else will be subject to ouster clauses until we are left with virtually no judicial review at all?
Andy Slaughter
Q
Ellie Cumbo: I am happy to say on behalf of the Law Society that we support the creation of suspended quashing orders. That enhances remedial flexibility and how can that be anything but a good thing? As I have already indicated, our concern is with the presumption that those then become the default remedy, when they do not already exist and there is no evidence base as to the extent to which they are an effective remedy.
Andy Slaughter
Q
Sara Lomri: PLP would add that the judges already have those powers. There are cases where suspended orders have been made, but the judges have used them very sparingly. I heard earlier today your witnesses talking about increasing discretion and flexibility for judges. Absolutely, clause 1 does not do that. As the Lord Chancellor said in The Daily Telegraph on 17 October, it is about trying to mandate judges and that is really problematic for the reasons that we have already set out.
Andy Slaughter
Q
Sara Lomri: We think that they are dealt with by the judiciary itself. It does have that power, and it is not needed in the Bill.
Louise Whitfield: Liberty’s position is the same: the judiciary has the power. We do not see that there is a difficulty in legislating to clarify that it does have the power, but it is the presumption that becomes problematic.
One of the points that is missing from this debate and discussion is that this will actually add a very considerable layer of further complexity and cost and take up more court time, in a way that will make judicial review less accessible and less clear. There are already hearings just about remedies. If you add on top of that a whole layer of arguments about six different factors as to whether you should get an immediate quashing order or a suspended quashing order, I think, based on my experience, you are going to have a lot of very lengthy legal submissions in writing and further hearings; you will have to list the hearing before the same judges who heard the original trial. It is going to increase costs, and it is going to make the litigation more risky for claimants. It is going to be off-putting because of the difficulty in advising people about their chances of getting the order to which we say that they should be entitled if it has been held that something is unlawful.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
“an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.”
That also reflects the view of Lord Sumption who, the witnesses will be aware, has commented:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament … confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do.”
He added that
“if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”
There is clearly a problem. We have heard that from other witnesses this morning. The problem needs to be solved. I have some sympathy with the view that the Bill does not go far enough and that we could do more. However, the idea that we should do nothing seems to me to ignore the facts.
Ellie Cumbo: If I may say so, I have not heard facts. I have heard assertion; I have heard the opinions of two people, neither of whom have been recent practitioners. On behalf of the Law Society, I do not think that we would agree that we have seen evidence that there has been an increased politicisation of the courts. In any case, it is not up to the judges to decide what cases come before them. This question is largely about the remedies available in judicial review; that is what the Bill seeks to focus on. Our view is that judicial discretion is what enables a proportionate remedy that correctly responds to the facts of the individual case to be made.
Sir John Hayes
Q
Ellie Cumbo: Certainly, but, as I say, I have seen no evidence to suggest that that is what is happening.
Sir John Hayes
I will give you some evidence in a second, but others may want to comment first.
Ellie Cumbo: I was actually going to make a slightly different point that actually enhances the ability of the Bill to protect judges from any assertion that they are in fact dabbling in matters of policy, which is that the provision we were just talking about earlier—to create suspended quashing orders—is not entirely clear on the face of the Bill. What it actually says it may do is allow for conditionality in suspended quashing orders: in other words, you would introduce a quashing order that would take effect only in the event that certain conditions laid down by the courts are or are not met. That is, arguably, inviting judges to pass a view on what an acceptable policy solution in those circumstances would be. We would welcome some clarification on that point of the Bill in order to ensure that it is very clear that judges are not being invited to pass policy.
Sir John Hayes
Q
To give an example, I understand that a character called Jolyon Maugham—I am inclined to say, wearing my inverted snobbery on my sleeve, that there were not many Jolyons on the council estate that I grew up in—is going to take to judicial review the appointment of the new chair of the Charity Commission, at least according to reports. That is despite the fact that in parliamentary answers it has been made clear that that appointment has been an open and fair competition in line with the Cabinet Office’s governance code on public appointments, as regulated by the Commissioner for Public Appointments. Even where the process has been entirely fair and reasonable, the judicial review is being used as a way of asserting—one might go as far as to say campaigning—for political ends.
Ellie Cumbo: I do not want to continue to speak if my colleagues would like to join in. I will just say that I am not familiar with the merits of that case and cannot comment on it. I would return to the point that the Bill is primarily looking at the remedies that should be available in the event that a decision in that case was found to be unlawful. Our view, as stated already, is that remedies should be effective whatever the impugned decision is.
The Chair
Sara or Louise, do you want to join in?
Sara Lomri: Yes, I would love to. The assertion around the increased number of political cases and litigation remains just that; Lord Faulks and the IRAL looked at this and there was no such finding. At PLP, we advocate for and promote evidence-based approaches to policy. We know that there are around 4,000 applications for judicial review every year and around 1,000 get to trial. We know that in the majority of cases defendants win, not claimants.
In terms of the cases that you, Mr Hayes, and the Attorney General are talking about, there are probably a handful over a couple of years. It is understandable why those cases may take up a lot of oxygen, and of course we cannot talk for Jolyon Maugham and what that case is about.
I am a solicitor and I represent individual, marginalised, disadvantaged people who have no option but to use judicial review to hold the state to account. By passing this Bill you are going to make it harder for those people: the vast majority of users of judicial review on a day to day basis. You are going to make it hugely more difficult for them to get access to justice.
The Chair
Louise, do you want to add anything?
Louise Whitfield: I have nothing to add to what my colleagues have already said.
Angela Crawley
Q
Sara Lomri: I do not have the stats in front of me to compare the number of JRs in the immigration jurisdiction and at the upper tribunal as opposed to the High Court, but I can quickly try and find those.
The judicial reviews that we are involved with are around how decisions of the state impact poor and marginalised individuals. There are issues around welfare benefits, special educational needs, discrimination against all kinds of individuals, and particularly disability discrimination and difficulties around getting access to public services. That is the mainstay of our work. I am not sure that anybody who uses the immigration justice system feels that they are getting any kind of special treatment.
We say that Cart JR—if that is what was behind the question—remains a really important procedural safeguard for the most vulnerable, marginalised and disadvantaged individuals, to make sure that unlawful and erroneous decisions do not go unchecked.
Angela Crawley
Q
Sara Lomri: I would just say yes, I absolutely agree with that.
Louise Whitfield: I have not practised immigration law either—like Sara, I cannot comment on the figures—but a lot of the judicial reviews that I have been involved in over the last 20 to 25 years have been the kind of low-level day-to-day decisions that affect people. A lot of the debate has focused on the high-profile cases.
People hear about judicial reviews that go to trial over completely random issues, such as where Richard III should be buried and that kind of thing. In actual fact, judicial review is really important, if not essential, for day-to-day stuff such as whether you are entitled to a blue badge and whether rail replacement buses should be wheelchair accessible, and for loads of issues such as whether you should be supported to live independently in your home when you are old and disabled and struggling on your own, or whether you should have access to particular drugs or healthcare.
The reason why those cases do not get much publicity, but are really important, is that they settle pre-issue. They settle pre-issue because we have the opportunity, within an effective pre-action protocol, to say to a public body, “We think this decision is wrong; please put it right.”
If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.
Ellie Cumbo: I understood the question to be about Cart and this idea that immigration cases are privileged—I think that is what you said. It is important, in the interests of strict accuracy, to say that Cart judicial reviews are available outside of immigration. Mr Cart himself was challenging a decision of the child support and social security tribunal. He was seeking to vary his child support. While I am on this, it is also worth saying that he ultimately lost; he was unsuccessful in securing a judicial review of his own. He merely won the principle that judicial review should be available in certain circumstances.
Tom Hunt
Q
Sara Lomri: In relation to Cart JRs, we are talking about a constitutional principle. Public Law Project and others are saying that that price tag of £350,000 to £400,000 is worth it and a good use of resources.
When we talk about Cart JRs, we talk about the case of G, who had been seriously mistreated in Nigeria and trafficked to the UK. The Government agreed at the first-tier tribunal that she was a victim of trafficking, but the tribunal came to a bunch of erroneous decisions, including that the evidence that supported her being a victim of trafficking was not substantiated, and came to the wrong decision. She brought a Cart JR, which was successful. As a result, she and her child were not returned to Nigeria, where they invariably would have been killed. That is the price tag.
We say that that is such an important procedural constitutional principle that the tribunal’s decisions should be reviewed from time to time by the High Court—by a judge who is more senior, has more time to consider the evidence, and who is sometimes better placed to make those decisions. Yes, we think that is an efficient, much better use of scarce resources.
Tom Hunt
Q
Sara Lomri: It is the same amount that DCMS spent on its art collection in 2019-20. When we are talking about constitutional principles, I do not think we can say that is too much money.
Tom Hunt
Thank you.
Ellie Cumbo: Could I come in briefly on that point? We entirely agree that judicial resource is precious. As one of your earlier witnesses said, more of it would make an enormous difference to the issues we are dealing with, such as the backlog in courts at the moment. However, there are other interests that it must be balanced against, including that once again, in these cases, we would be talking about an unlawful decision by the upper tribunal. I think it is a reasonable expectation that unlawful decisions should be able to be challenged.
I would make a second point about resource. If we take the Public Law Project’s figure of around 5.7%—so around the 6%—that is not incomparable to the number of rape reports that lead to a conviction: nobody would argue that that is a waste of resource.
Andy Slaughter
Q
Sara Lomri: Just in response to Tom Hunt’s point, originally, yes, IRAL made a claim that Cart cases had a very low success rate. In order to answer that question, we have to get into the weeds of how cases are brought and how they are reported. IRAL said that there were 12 cases that had been successful, which points to a success rate of 0.22%.
In fact, there is significant difficulty because Cart cases are not reported. Also, because of the way they are brought—through a different stream, and they do not go to hearing—it is hard to get to the data. Through the work that we did with practitioners and people we know who have been involved in Cart JRs, we came up with a figure of more like 5.7%.
The Government’s revised figure—following our successful challenge to that, which went via the Office for National Statistics, and they agreed with us—is something in the range of 3%. Other researchers have had a look at it, and they have said between 5% and 10%. Our own data indicates 5.7%, which is why we give that figure—and we think it is hugely more reliable than the Government’s 3%.
The Chair
I am conscious of the time, and we have three more questions to come. Paula Barker.
Paula Barker (Liverpool, Wavertree) (Lab)
Q
Sara Lomri: Ellie, I am not trying to drop you in it, but could you answer that first? I feel like you have more to say about online than we have.
Ellie Cumbo: The Law Society would probably not get into the detail of deciding which cases it would be appropriate for. What we do have is quite a comprehensive set of views on the types of proceedings in which online proceedings are appropriate—rather than the types of cases, if you see what I mean. It is going to depend not just on what the case involves, but on the nature of the parties. If it is helpful, I would be very happy to provide that to you after today. I am probably not in a position to itemise it right now.
The only thing I would say that I think would serve as a general Law Society position on this part of the Bill is that we have a particular concern about unrepresented litigants or, in criminal proceedings, defendants taking part in online proceedings. There is a real danger of the formality not being clear to them in the absence of expert advice, and these can be life-changing decisions, so we would have real concerns about the fact that, as drafted, the Bill does not seem to make any distinction between represented and unrepresented parties.
Paula Barker
Q
Louise Whitfield: No. Liberty is not doing any work on part 2 of the Bill, so I will leave it to colleagues to answer this.
Paula Barker
Q
Sara Lomri: Public Law Project, like others, remain very concerned about digital exclusion and the blurring between digital assistance and independent legal advice, which we say remains extremely important. Further than that, I know that you will hear from other witnesses later on, including Justice, and we would support what they say on online courts. Later on today, you also have Dr Joe Tomlinson, our ex-research director, who will also be able to flag some headlines in terms of PLP’s response to the online issue.
Paula Barker
Q
Sara Lomri: In terms of the headline answer to that question, we would say preserving and promoting legal aid, and ensuring that independent legal advice remains a viable option for those using online justice systems.
Paula Barker
Q
Sara Lomri: I am sorry, but I am not able to answer that question.
The Chair
I think the Minister wants to come in briefly now. I will then move to Liz Twist, and then to Caroline.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Q
James Cartlidge
I said the Public Law Project.
Sara Lomri: We do not accept that it is about bites of the cherry. It is about fair systems. For example, in the case of G, the Government accepted that she was a victim of trafficking and the first-tier tribunal came to an erroneous decision. The High Court then corrected that erroneous decision. If the Cart JR had not been available to G, a victim of trafficking from Nigeria who was on the verge of being returned with her child back to her traffickers, that erroneous, unlawful decision would have held. It is not about bites of the cherry; it is about correcting unlawful decisions, and erroneous errors of law.
James Cartlidge
Q
Sara Lomri: Why it does not summarise it very well is because it is trying to paint a picture of our client group, who are the most marginalised and disadvantaged people in society, as having some kind of privilege that most people do not have. This is just not the case. This is about correcting unlawful decisions; most people do not have to go through this. Most people—thankfully, because we live in a good and democratic society—do not have to hold Governments to account,. However, when they do, we hope that those systems are fair and work properly.
Liz Twist (Blaydon) (Lab)
Q
Ellie Cumbo: We do have a concern about that provision, in clause 42, I believe. We believe that the abolition of local justice areas obviously risks forcing parties to a case to travel much greater distances, at great cost to themselves and to the courts in the event of delays and cases having to be taken off as a result. There is also a point of principle around justice being seen to be done at that local level where it feels like it relates to the community from which all parties are drawn. What we would ask is for a consultation with local stakeholders before those provisions go ahead.
Liz Twist
Q
Ellie Cumbo: I do not think we have considered that question in detail. Possibly the Magistrates Association would be best placed to comment, and we would usually defer to them. If you would like us to provide an answer at a later date, I am very happy to do that.
Dr Johnson
Q
Sara Lomri: Absolutely. When I was talking about—
Dr Johnson
The legislation that I am talking about would not actually affect whether or not a child with special educational needs, or a disabled person, was able to bring a judicial review of the Government’s decisions on their behalf. It does not really apply to this Bill—or have I misunderstood?
Sara Lomri: I think you have. I was painting a picture of the kinds of clients that I represent when using judicial review. Clause 1—
Dr Johnson
But does it affect the abolition of the Cart reviews?
Sara Lomri: Clause 1 is about the presumption of prospective-only orders, which absolutely would impact on that client group.
The Chair
Order. I am afraid that we have come to the end of the time allotted for this panel. I thank the three witnesses for their evidence.
Examination of Witnesses
Louise Finer, Stephanie Needleman and Steve Valdez-Symonds gave evidence.
The Chair
Welcome to the new witnesses. It is good to see all three of you physically present. We will have none of the technical difficulties that we had earlier, although it is important that people attend, whether virtually or in person. Could you please introduce yourselves before we begin the questions?
Steve Valdez-Symonds: My name is Steve Valdez-Symonds, I am the refugee and migrant rights programme director at Amnesty International UK. For the purposes of these proceedings, it is probably relevant that I have experience of practice in the immigration field, including many years of representation before the immigration tribunals of various iterations, and training and supporting practitioners in understanding the law and procedures, and many years’ experience of parliamentary advocacy, including representing those practitioners in that.
Stephanie Needleman: I am Stephanie Needleman, I am the acting legal director at Justice. Justice is an all-party law reform and human rights organisation that works to strengthen the justice system in the UK. Our vision is for fair, accessible and efficient legal processes that protect individuals’ rights and uphold the rule of law.
Louise Finer: My name is Louise Finer, I am head of policy at Inquest.
The Chair
Your sound is very low indeed. Could you move a bit closer to the microphone?
Louise Finer: I was trying to socially distance, but it is more important that you can hear me. We are an organisation that supports families through the inquest system. I bring that experience to this Committee.
Alex Cunningham
Q
Stephanie Needleman: There are two provisions in the Bill that we are concerned about in terms of safeguards. There is the new allocation procedure for online pleas, for adults in clause 6 and for children in clause 8. While the Government have said that this will be accessible only through the common platform, which as I understand can currently only be used by legal professionals, there is nothing in the Bill that would guarantee that a defendant would only be able to enter an indicator plea or trial venue with access to legal advice. We would like to see something in the Bill that guarantees that.
We oppose the use of the procedure by children. We do not think that even with a safeguard of access to legal advice that it is an appropriate procedure for use by children. The criminal justice system considers children to be inherently vulnerable, and there is a whole process in place in the youth criminal justice system that recognises their rights and works to guarantee them, and this system would allow that whole system to be bypassed.
Alex Cunningham
Q
“has attained the age of 16”
rather than the usual age of 18? Could that be covered?
Stephanie Needleman: Clause 4 is not something that we have looked at in particular detail. As I understand it, the automatic online conviction process in the Bill is only available to 18-year-olds. The single justice procedure that it builds on is also only available to 18-year-olds, and the section 12 procedure in clause 4 is available to 16-year-olds, and that does appear to be an inconsistency that is unjustifiable.
Alex Cunningham
Q
Stephanie Needleman: The same concerns as we have with using the new online allocation procedure for children. There is a whole system set up to protect vulnerable children within the criminal justice system, and those safeguards are being bypassed.
Alex Cunningham
Q
Stephanie Needleman: That is not a clause we have looked at in particular detail, unfortunately.
Alex Cunningham
Q
Stephanie Needleman: Yes, we are very concerned about the disproportionate impact of the AOCSSP—a catchy acronym. That builds on the single justice procedure, and there are clear issues with that that have not been addressed by the Government. There has been some research by Appeal, which shows that the vast majority of those being prosecuted under the single justice procedure are women for non-payment of television licences.
We are concerned about the impact on ethnic minorities. Racial disparities permeate the criminal justice system, and we are concerned that a disproportionate number of ethnic minority individuals will also be unduly criminalised through the automatic online conviction process, as well as those with mental health conditions or neurodivergent conditions who may have particular difficulties understanding the process or the implications of going through the process, pleading guilty and receiving a conviction.
As it stands, there is nothing within the process that would screen for any vulnerabilities, and there has also been no assessment by the Government, as far as we can see, of the equalities impact of the Bill. Back in 2017, these measures were originally floated in the Prisons and Courts Bill, and there was an equalities statement which recognised the potential adverse impact on people with protected characteristics. There has not been an update to that equalities statement as far as I have seen. As it stands and given the issues with the single justice procedure that it builds on, we think that the procedure should not be in the Bill. However, it definitely should not proceed without a review of the current evidence available in terms of what impacts it might have on those groups with protected characteristics and vulnerabilities.
Alex Cunningham
Q
Stephanie Needleman: Absolutely. That is also a concern of ours in terms of people understanding what the process involves and, importantly, what the outcome of that process is going to be. Obviously, with the automatic online conviction, that outcome is a criminal conviction. We are worried that the process encourages people to go through it and plead guilty without properly understanding what impacts that can have later in life. I know it is currently only for summary and non-imprisonable offences, but those can still have serious implications—a criminal record, increased insurance costs, loss of employment and educational opportunities. This is not just for trivial offences that will not have an impact on people’s lives. Similarly, with the online plea, understanding the implications of where a case is heard—and the seriousness of going to the Crown Court and having the greater sentencing powers available there—is incredibly important. There should be provisions built in to ensure that defendants understand those. Having legal representation in the context of the allocation procedure goes some way to dealing with that.
Alex Cunningham
You have anticipated the rest of my questions. I do not know if either of your colleagues wish to comment. No.
Sir John Hayes
Q
“challenges to legislation on the grounds of discrimination are becoming increasingly common in the UK, usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
They are assisted in that, are they not, by the principle of proportionality, which confers on courts a broad discretionary power that risks undue interference of the courts in the sphere of political choices. That is very bad, is it not, both for a democratic society and for the role and reputation of courts, because the separation of powers—well, I do not need to lecture witnesses on the separation of powers. They know what it means. We have a problem that needs to be solved by legislative means. The Bill is a welcome start in that respect, is it not?
Sir John Hayes
I am happy for any or all to take it.
Steve Valdez-Symonds: I am happy to respond to that on behalf of Amnesty. With respect, I think that is to misunderstand the role of the courts. The courts manage—indeed, you make a reference to the Supreme Court giving clear direction about its view to all the other courts below it as to how to manage the matters that are brought before it, including matters that raise the issue of proportionality. Proportionality, where it applies, is a question of law on which courts need to rule. That is why we have a judicial system, not for Parliament to try to predetermine how courts should exercise that role and perform their judicial function, in ensuring that administrative bodies act proportionately, according to the law and according to its interpretation as clearly set down now by the Supreme Court.
Sir John Hayes
Q
Steve Valdez-Symonds: The Supreme Court.
Sir John Hayes
I was reading out a court judgment, so there are a number of distinguished judges who share the view I articulated, as you know, that proportionality has become a problem and the Supreme Court has interfered in matters of high politics. That is the argument that has been made by the Attorney General, Lord Sumption and others. That is not my view; it is the view of those who want to see the courts doing what they traditionally did. It is a long-established and time-honoured principle that courts do not become involved in matters of high politics and the argument I am making—or reflecting—is that that is now a problem. We saw it in the Miller case and there is no guarantee that the Supreme Court would not act as it did in the Miller case again. We need to do more to clarify and make certain the respective roles of those who are chosen by the people and who are accountable to them, and those who are not.
Steve Valdez-Symonds: If I may, I will make two responses to that. First, with respect, you started reading from the Supreme Court’s judgment on the question that you were concerned about, I understood from you, in support of what the Supreme Court had ruled and the direction it has given therefore to all the courts below it as to how judicial proceedings on the matter in question should be performed in future. It seems to me that the matter is addressed by the Supreme Court in black and white in front of you.
As for the wider question, the issue is clear that the Government set out—commissioned—a review of judicial review. It had eminent evidence from many public bodies, including many Government Departments, about whether there were concerns. Its overriding finding on judicial review generally was that there was no problem. Again, for reasons that have also been given earlier, I do not see that there is any need for this interference, frankly, with the way in which courts perform their constitutional function.
Sir John Hayes
Q
A good argument for a process of judicial review is that the grounds on which it is exercised have altered. As you know, the Attorney General has made clear her concerns about this, as have a number of senior lawyers, former Supreme Court judges and others. The argument I am making is by no means an unusual or untested one. You will have heard it many times before. I am simply saying are not the Government right at least to address those concerns?
Steve Valdez-Symonds: With respect, all I can do is refer to the previous answers and say that I think the Government are not right. Of course, there were many voices, including judicial voices, that have considered that the situation is satisfactory as it is, including the review that the Government commissioned.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept what you have articulated, but you started by reading from a very recent Supreme Court judgment, which I understood you to agree with. I do not really see what you see as the problem. The Supreme Court has ruled on the matter. It is the highest authority for all the courts that will have to deal with the matter in the future and there is no ruling.
Sir John Hayes
Q
Steve Valdez-Symonds: But it did not in the very matter that you have just read from in its very recent judgment.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept that.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not think I can add any more. I am sure the Government’s review spent considerable time with considerable amounts of evidence—more time than this Committee will have to consider these things, unfortunately—came to a clear conclusion that there was no need essentially to revise the way in which judicial review works. It was working perfectly well—we agree with that.
The Chair
Sir John, my interpretation of what you are saying is that you want to widen the scope of the Bill. The scope of the Bill is already set, so with the indulgence of the Committee, I move to the next questioner, Andy Slaughter.
Andy Slaughter
Q
Louise Finer: Thank you for the question. On clauses 37 and 38, we feel that, although they might be appropriate in some circumstances, they introduce some very real risks into the coroner service. Reflecting on the recent report by the Select Committee on Justice, and the extent to which it identified the continuing problem of inconsistencies and, essentially, a postcode lottery, depending on the coroner who hears the case, we are really concerned that there need to be some strong safeguards on clauses 37 and 38, to ensure that, in the kinds of cases that Inquest supports, day in day out, no new risks are introduced through the Bill.
What concerns us about these two clauses is very significant decisions being taken that could lead to the proper interrogation of evidence being curtailed at an early stage, when families would often not have legal representation to be able to argue the case to continue an inquest, or for an inquest to be heard. The kinds of cases that we have seen, were these clauses to be in place, include some where initially evidence suggested a death by natural cause, but where, as the inquest progresses, further evidence comes to light that suggests that the situation was anything but.
To refer briefly to one case, Laura Booth died in hospital after a routine eye procedure. She became unwell and developed malnutrition, due to inadequate management of her needs. In that case, the coroner was not initially going to hold an inquest, because it was considered a natural-cause death, but the family pushed for an inquest. The inquest reached such critical findings that it would have been quite shocking for that not to have occurred, had the inquest been discontinued. It was found that her death was contributed to by neglect, and that there had been a gross failure of care. We are suggesting that safeguards need to be built in, to ensure that cases such as that, which really need to be heard, in the context of a coronial system, where there is already a significant amount of discretion, should not be discontinued, and are in fact heard as appropriate.
On clause 39, on remote hearings and juries, we are really worried and broadly agree with the evidence of André Rebello. His conclusions were quite damning, to be frank, of the risks of remote hearings. Again, there may be some circumstances in which a remote hearing is appropriate. We see them as potentially very advantageous for pre-inquest hearings. A remote process can be very efficient. We do know some families who are happy to go ahead with a remote hearing but, of the families we support, that is a very small minority. Overwhelmingly, the families we have supported recently have very negative views and impressions of remote hearings.
We take issue with the Government’s justification for that aspect of the Bill, which we think is weak and unevidenced. It claims that remote attendance will reduce distress. We are not sure what evidential basis there is for making that claim. It certainly does not match up with our experience of the many families we are supporting at the moment. Although there may be some benefits to opening up the ability to join remotely, we do not see those as being introduced as an add-on and an advantage, but more as a taking away.
The argument about bringing coroners’ courts into line with other courts in terms of remote attendance glosses over the fact that the inquest process is quite a different process from that in other courts. We think there needs to be much more exploration, consultation and development and evidence to justify the proposal.
An inquest process can be a very traumatising experience for a family already traumatised. Imagine yourself having to sit through the inquest process and hear evidence about how a member of your family died. They may have been a long way from you in a prison or in a secure setting when they died. You may have no knowledge of how they died. The inquest process may be your first opportunity to find that out. Imagine doing that in your front room, without the support services that you would have in person at a hearing. We think that there are very, very real risks that families could be retraumatised and put through more distress rather than, as the Government claim, their distress being reduced.
We are concerned about remote juries. We have had recent experience of juries sitting in adjacent rooms to the coroner, and the coroner is then unable to see the jury as they would were they in the same room. We have seen some very concerning things, including jury members falling asleep, eating packets of crisps and so on and so forth. All such things would be much harder to safeguard against the more remote the setting. We think the Government need to provide more evidence to support their claims about remote hearings, to evidence much more clearly how they would work in the context of the inquest and how they would ensure that families were not put through more distress or their ability to participate effectively undermined.
Andy Slaughter
Q
Louise Finer: Our view is that this Bill presents a crucial opportunity to address the inequality of arms that is at the heart of the inquest process. There have been many calls from authoritative reviews and inquiries to address this and it is a disappointment to us that there is nothing in the Bill to address that inequality of arms. The Justice Committee report—so recent—was absolutely clear on this point. It makes no sense that on the one hand Members are concluding that and on the other a Bill is introduced that does nothing to address that. There are many other issues in the Justice Committee report that remain unaddressed in the Bill.
The inequality of arms is acute. One example came last week in the Westminster Hall debate on the Justice Committee report. Tim Loughton MP referred to the Shoreham air disaster. He said that he supported the case for public funding for inquests because of his experience of the Shoreham inquest. Very early on it was unclear whether the families would get funding for legal representation, but it was immediately clear that all of the 18 public bodies represented at the inquest would have automatic access to funding to represent themselves. Yet there was a big question mark over whether the families of the victims would receive funding for inquests. We acknowledge that the Government are bringing forward some measures to address the means test for exceptional case funding, and we welcome those, but we do not think that they go far enough. We very much hope that the Bill will seize the opportunity to do something about that.
Andy Slaughter
Q
Louise Finer: I will be as brief as I can. There are many issues in the Justice Committee report and many recommendations for an appeals process, a coroner service inspectorate, and a national coroner service, which would help to eliminate the inconsistency in the system. We support all those recommendations and would welcome any of them being incorporated in the Bill. Most importantly, the Justice Committee called for families to be put at the heart of the inquest process. What we are concerned about is that clauses in the Bill could actually go the opposite way. Instead of putting families at the heart, it could make it even harder for families to participate effectively.
Andy Slaughter
Chair, I was going to ask about judicial review, but I understand I will have time at the end.
The Chair
If we have time at the end. We have got three more questions that one or more of the panel may wish to answer. I call Tom Hunt.
Tom Hunt
Q
Steve Valdez-Symonds: I do not regret the use of the word. I was drawing attention to the fact that there was considerable interference in the functioning of a judicial function in the tribunal system and the way in which the Government were legislating not just in this Bill—this is an important factor, which is not before this Committee—but in the Nationality and Borders Bill at the same time. If it is passed in its current form, it will impose direction on judicial figures in the tribunal system as to how they may perform their judicial function, and how they must or must not weigh and assess evidence and appellants in front of them, pre-empting what will be in front of them by statute.
It is a grave concern that at the same time as withdrawing in this Bill the oversight of our constitutional courts to ensure that the tribunal system works properly according to law, the Government are seeking to legislate to incapacitate those tribunal systems to manage independently and fully their own judicial functions. That is the effect of provisions in the Nationality and Borders Bill. You can look at them in clauses 16, 20 and 23. Provisions like that, although not going anywhere near as far—dating back to 2004, the time of the ouster that this Committee has discussed that was put forward by the Labour Government—have caused much confusion already.
The Chair
Steve, I really should have pushed Tom on this because it falls outside the scope of the Bill.
The Chair
I think the witness tried to justify it in an explanation relating to a different piece of legislation.
The Chair
Sorry, Steve, you were answering.
Steve Valdez-Symonds: The point I have made is that you cannot properly look at these two Bills in isolation, because clause 2 of this Bill affects whether there is any constitutional court scrutiny of whether the tribunal system performs the functions that Parliament has set it up to perform. At the same time, you have legislation to impede that tribunal’s functions about whether it can perform those duties. You have legislation from the very Department whose decisions it will be responsible for regulating—the Home Office. I think it perfectly appropriate to raise the concern that if that sort of interference were going on in the courts of other countries, we would, as I said, describe it as tyranny. [Interruption.]
The Chair
Sorry; we are not taking questions unless they have been indicated. Tom has indicated that he has finished his questions. I call Paula Barker.
Paula Barker
Q
Paula Barker
Thank you, Chair. Ms Needleman, what are your views on the powers provided to the Lord Chancellor by the OPR provisions, and do you believe that they cause a democratic deficit?
Stephanie Needleman: The provisions relating to the online procedure rules give significant power to the Lord Chancellor. The Government have themselves recognised that the broad powers provided to the Lord Chancellor could have a significant impact on access to justice and that some of those powers should therefore be subject to a requirement to obtain the concurrence of the Lord Chief Justice. However, there is a slight lacuna in the Bill, in that two powers are not subject to the same concurrence requirement.
Those are the power to require the online procedure rule committee to make rules, and a broad Henry VIII power to make consequential amendments, the latter power being subject only to a consultation requirement and the former to no requirements at all. That undermines the point of having a concurrence requirement in the first place. As Lord Judge pointed out on Report of the Courts and Tribunals (Online Procedure) Bill—the previous iteration of these rules—taken together, those powers overrule the very rules that the Government themselves made subject to the concurrence requirement because of the wide-ranging impact the provisions can have on access to justice.
Liz Twist
Q
Stephanie Needleman: Absolutely. As I said before, we do not think this procedure, as it stands, should be introduced at all, because of the lack of evidence and the concerns around protections in relation to the identification of vulnerabilities and inequalities. However, if it is introduced, we at Justice are calling for it to be restricted to non-recordable offences only.
Currently, the Bill would allow the procedure to be used for a range of offences that would cause people to have a criminal record. That could impact parents when it comes to failing to provide for the safety of children at entertainments, for example, or it could impact pub-goers and pub owners in relation to the offences of being drunk in a public place or selling alcohol to a person who is drunk. If the procedure is to be introduced, we would call for it to be for non-recordable offences only, because the implications of being convicted of those are smaller.
The Chair
Andy, we have a bit of time left. Would you like to come back to your earlier point?
Andy Slaughter
Q
Stephanie Needleman: I will take clause 1. Justice supports the introduction of suspended-only quashing orders. We think that, after Ahmed, the law could do with clarification, and that putting statutory suspended quashing orders on a statutory footing makes sense. We envisage that the orders would be used in exceptional circumstances such as those that existed in Ahmed, where there had to be retrospective legislation to deal with the issues it caused.
Crucially, suspended-only quashing orders come into effect and have retrospective effect, even if it is slightly delayed. However, prospective-only quashing orders do not have retrospective effect, and we oppose those measures. You have heard a lot of arguments about why they undermine the rule of law; in particular, they do not afford a remedy to the individual claimant in front of the court, and more generally to other people in the same situation as claimants. For example, if someone paid tax under a regulation that was later found to be unlawful, they would not be able to reclaim the excess tax they had paid, because the Bill as currently drafted requires the regulation to be treated as lawful up until the point of that judgment. In relation to benefits, if ineligibility criteria were later found to be unlawful, under the Bill people would not be able to reclaim benefits that they would have been entitled to, because the unlawful ineligibility requirements would be deemed to have been lawful at the time they claimed their benefits.
We are particularly concerned about the presumption. We have heard from various people in Government that the provisions increase judicial flexibility, but the fact that there is a presumption is entirely opposed to the idea of increasing judicial discretion and flexibility. The presumption constrains judicial flexibility and remedial discretion by requiring the prospective-only quashing order to be used in certain circumstances. We are concerned that the prospective-only quashing order will have a chilling effect on judicial review. Even if a prospective-only quashing order would not in any one case be given, the fact that the presumption for it exists in the first place creates a chilling effect, as it is an additional factor for a claimant in deciding whether to bring a judicial review in the first place. It may also make it harder to obtain legal aid, because the merits criteria require there to be sufficient benefit to the litigant if successful. Those are our main concerns about clause 2. I will let Steve talk about clause 2.
The Chair
The Minister has indicated that he would like to ask a quick question. Steve, could you answer quickly so I can try to squeeze him in?
Steve Valdez-Symonds: I will do my best, and I will be led by you. I will say nothing about clause 1; we agree with the concerns raised. I ask the Committee to think back to the evidence of Professor Feldman. He is someone who supports clause 2, but he does so having expressed great disquiet about it in principle, and we agree with that. The principle of the matter is that statutory bodies, including statutory tribunals, which have limits on their powers set by Parliament, are required to be ordinarily subject to review by our constitutional courts to ensure that their powers are exercised properly and within the powers that are set, rather than, as he put it, being permitted to determine for themselves where the limits of their powers are. That is what clause 2 is removing.
There is nothing exceptional about Cart judicial review for immigration matters or the other tribunal matters that it relates to, except for the fact that it is a highly restrictive form of judicial review because of the particular practice direction by which the High Court has operated ever since the Supreme Court decisions in Cart and Eba, which curtail both the process, to make sure that it is less truncated, and the much higher test that has to be passed for the judicial review to succeed.
Professor Feldman then goes on to reach conclusions for suggesting why he none the less, despite his great disquiet, thinks it is appropriate to interfere in this way. There are several reasons why I think he is wrong about that, and why I think he misunderstands some of the things that have happened—including since Cart and Eba, and including those that are happening by legislation now—which more closely curtail the prospect of justice in this tribunal system. Perhaps in view of the direction from the Chair, I will write to the Committee immediately afterwards and spell out what those things are, so that the evidence is in front of you.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee to ask questions of this panel. I thank the panel for making the time and effort to appear before us physically, which was much appreciated. Apologies to the Minister on the final question.
Examination of Witnesses
Dr Joe Tomlinson, Aidan O’Neill QC and Michael Clancy OBE gave evidence.
The Chair
We have a fully virtual panel of three members this time. May I ask each panel member, starting with Dr Joe Tomlinson, followed by Aidan O’Neill and Michael P Clancy, to introduce themselves?
Dr Tomlinson: Thank you. I am Joe Tomlinson, senior lecturer in public law at the University of York. I study all aspects of the public law system, and I have a particular interest in judicial review. Of particular interest to discussions today, I suspect, is that I have a particular interest in empirical studies of judicial review and immigration judicial review.
Aidan O'Neill: I am Aidan O’Neill. I am a QC at the Scottish Bar and also the English Bar. I suppose that I practise primarily in the fields of public law and constitutional law. I have been involved in a number of recent cases that involved constitutional issues, among them Miller (No. 1) and the Cherry-Miller case, which referred to the prorogation of Parliament, and the Wightman case about article 50 and whether it could be unilaterally revoked. My area of practice is within judicial review on both sides of the border.
Michael Clancy: Good afternoon, Chair and Committee members. I am Michael Clancy. I am the director of law reform at the Law Society of Scotland. I have a particular interest in constitutional law and some aspects of immigration law, and I am delighted to be here and to answer, or attempt to answer, your questions.
The Chair
Thanks very much for attending today’s meeting. I will start with Dr Caroline Johnson.
Dr Johnson
Q
Dr Tomlinson: I do not have the exact full set of statistics to hand, but I would happily supply those to the Committee. The general picture of judicial review is that ordinary judicial review, by which I mean non-immigration cases, is around a few thousand cases issued every year. Numbers have been declining in recent years. On the immigration side, for a good period of time—a couple of decades—there have been more immigration judicial review cases. They are obviously mostly heard in the upper tribunal now. The numbers fluctuate for a variety of complicated reasons, but my understanding is that they have been coming down in recent years. Cart is a small subset of judicial reviews. I can provide the full statistics to the Committee, but that is the overall picture.
Dr Johnson
Q
Dr Tomlinson: If you do not mind, I would like to comment on the figure, which is an important starting point. The original figure provided by the independent review of administrative law was 0.22%, which is an incredibly low success rate, but that figure was arrived at through the IRAL’s expert panel simply looking at published judgments. The Cart procedure is such that it is very unlikely to produce public judgments, so the panel looked only at a very narrow sample of the overall case load. The 0.22% figure is basically flawed. It is not correct, and the Ministry of Justice has since accepted that and provided a new figure of 3.4%, as I understand it. In various ways, I think that is also a deflated figure. Importantly, success is measured in the narrowest way possible. With a wider definition of success, you can get to a higher success figure.
It is difficult to say with any precision what the figure is, but I can say it is certainly not 0.22%. It is 3.4% with a very narrow definition of success, and it is higher than that if you have a different definition of success. The best figure, although it is not a precise figure, is that about one in 20 cases are successful. Of course, one in 20 is a relatively high success rate. You are challenging judicial decisions, so you would hopefully expect them to be of better quality, and so on. In my view, the success rate is not as low as the initial figure that was put out suggests.
Dr Johnson
Q
Dr Tomlinson: Again, I am not trying to dodge the question. It is very difficult to define in a precise way what success in a judicial review looks like. To take one example, most strong cases settle relatively early in the procedure. Settlement is a really important part of the judicial review system, but the way they show up in the statistics is that they look like withdrawn cases. The various statistics that we have vary, but I think we can accurately say that the Cart success figures are lower than the average judicial review success figures. By how much would be very difficult to say precisely, but one in 20 is still a reasonable success rate.
Dr Johnson
Q
Dr Tomlinson: I think the figure that Professor Feldman is relying on in making that claim is the success rate after a hearing. As I have just explained, many judicial reviews—the majority of them—do not reach a full hearing. When you get to that point, the success and failure rate is roughly 50:50. It obviously goes up and down in various directions ever year, but it is roughly 50:50. Overall, the success rate is potentially a bit lower, depending on how you define success. Again, I would say that potentially the best explanation for why success rates are lower in Cart judicial reviews is that you are talking about judicial decisions, rather than administrative decisions, being challenged by judicial review, so you can potentially expect a better quality of decision that is likely to withstand judicial review a little more robustly.
Dr Johnson
Q
Dr Tomlinson: Would you remind repeating that point? My connection dipped for a moment.
Dr Johnson
Q
The Chair
Sorry, there were two questions there. Before the witness had the chance to answer the one about the percentage of cases, you came up with another one. Were you clear on the first question, Joe?
Dr Tomlinson: I think so, yes. The headline point is that the statistics we have on judicial review—as a wider point, what the Government collect on judicial review could be much better—only give you a limited insight on success rates overall at different stages.
On the second question, if I have understood correctly, yes, obviously, Cart judicial reviews are of a slightly different nature, in that they challenge decisions of the tribunal. However, there are good reasons potentially, still, to provide judicial review of those decisions. Ultimately, what is at the base of those cases are the rights of individuals. While I can see there is a distinction to be drawn there, which was extensively dealt with in the initial Cart decision by the Supreme Court, the distinction in some ways is immaterial to the rights of the people who bring these cases.
Dr Johnson
Q
Aidan O'Neill: The first issue, of course, if one takes the 5% figure by way of success—I agree with Joe Tomlinson that it is a high figure—is that one always goes back to the idea: is it better to let one innocent person be convicted of a matter or to let nine guilty go free? In a situation where you have one in 20 Cart or Eba judicial reviews being successful after a hearing, that shows that there has been an error in law in relation to the specific individual case, which has potentially incredibly serious consequences when one is dealing with asylum and immigration cases. In principle, I do not think it is a question of playing with numbers and saying, “Well, only 5% are successful, so it does not matter—we can get rid of the whole position in terms of allowing errors of law to be identified and reviewed at second instance and by way of judicial reviews in other cases.”
I also agree with what Joe Tomlinson has said, which is that in the Cart and Eba situation, one is dealing with the fact that judges, both at first instance and in the upper tribunal, have looked at the matter and therefore are legally trained already, but they are not infallible. That is the whole point about judicial review; matters are not infallible. One would hope that there would therefore be a much lower percentage of areas in which they have been shown to err in law than is the case for simple administrative bodies, which are not necessarily particularly legally qualified and are certainly not judicial bodies.
I would be wary of the attempt to compare matters that are not alike by saying that there is a 50% success rate on non-immigration judicial reviews. I must say I would be very surprised at the basis of that statistic, but if it is the case, then—[Inaudible.] The point is that you are stopping those 5% of cases ever being rectified, and that is not a situation that I think Parliament should properly be allowing.
The Chair
Last point, Caroline, because there are other questions. Actually, Michael just wants to come in on your previous question, before you make your final point.
Michael Clancy: I agree with what Aidan O’Neill has said. Of course, in Scotland it is a different question in some respects, because as far as I recollect from the IRAL report, there were no statistics about the situation of judicial review in Scotland. The scale of things like that in Scotland is quite different, and one might expect only 100 judicial reviews to get to the Court of Session in any one year. The proportionality arguments about the use of judicial time and the expense are of a different order and would need to be separately vouched, I would say, before the same kind of decision taken in relation to Cart would be taken in relation to Eba-type cases.
Let us remind ourselves exactly why we have judicial review, which perhaps creates a tension between what one might describe as ministerial legality or quango legality judicial reviews and other types. Lady Hale said in Cart that
“the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law—that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise.”
I think that that grounds us on the basis for having a law of judicial review, and it is something that we should not depart from without very serious consideration indeed.
The Chair
Unless you have a really pressing question, Caroline, I would like to move on to the next speaker, because you have taken quite a bit of time.
Dr Johnson
Q
The Chair
Who wants to take that?
Aidan O'Neill: I do not understand the question. How does the judiciary make sure that—
Dr Johnson
Some people say that 0.2% of the judgments are incorrect, and some people say 5%.
Aidan O'Neill: Nobody is saying 0.2% reputably. I do not think one can take that on board. The IRAL report even accepts that its figure was wrong, so do not even start on that. You start with the claims made subsequently when this Bill was introduced, which were that the figure was at least 3%. That massive change was made in response to work done by academics such as Joe Tomlinson. Let us not start from 0.2%; let us use the better evidence we have heard so far, which is at least, or around, 5%. Ask me the question on that basis.
Janet Daby
Q
“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”
What is your view on that?
Michael Clancy: I am not entirely sure that I can comment competently on what is happening in the jurisdiction of England and Wales. It is certainly the case that there have been trials in Scotland of not only online pleas, but online trials with juries distanced from the courtroom. I do not know whether Aidan O’Neill would have more practical experience. The situations in the two jurisdictions are quite different, and my latest information is that we have almost reached pre-covid levels of conduct of trials in Scotland, which may have an element of online activity.
Of course, there are distance issues with some courts in Scotland. I remember one solicitor describing the fact that being able to conduct trials or provide pleas to court from Inverness in three courts in rural areas over the online system was actually quite a boon. I do not know whether that goes so far as to answer your question, but it is an observation that I can make from the Scottish jurisdiction.
Janet Daby
Would anybody else like to respond?
Aidan O’Neill: Echoing what Michael Clancy has said, I would just say that, at least anecdotally in terms of the situation in Scotland, full criminal trials, rather than simply online pleas, seem to have been working quite well. In fact, in terms of satisfaction levels, jurors seem to quite like the idea of turning up at a cinema, rather than at a court, and being more comfortably seated and better looked after while still being able to see and, apparently, participate in the criminal trial that is taking place elsewhere.
That is not answering the detail of your question, which I think was more directed towards the idea of things going online meaning less public participation. I would have thought that that was really a matter depending on the software or program used to allow for greater observation by the public online. On some levels, it is easier for the public to participate when cases and trials are online, precisely because they do not have to go all the way into court—the physical location—to watch it. I am unsure whether that addresses what it was you were asking.
Janet Daby
Would you like to respond, Dr Tomlinson?
Dr Tomlinson: I have spent quite a lot of time looking at the online proceedings question in England and Wales, and there are lots of interconnecting challenges around the move to online hearings. I have not spent much time looking at the criminal context, but rather at the use of online proceedings in tribunals. The challenge there with open justice is that online proceedings can potentially enhance open justice in various ways, but also diminish it. There is a real need for clarification of strategy in terms of key things like open justice, but also other areas, such as digital exclusion, in the reforms that we are seeing.
Angela Crawley
Q
Michael Clancy: We do take the view that the provisions of clause 2 engage legislative consent, otherwise known as the Sewel convention, which would require the consent of the Scottish Parliament. The reason for that is a piece of law that is a bit complicated and a bit tricky. Nevertheless, you began by identifying that judicial review of administrative action is part of the definition of Scottish private law, which is contained, as you say, in section 126(4) of the Scotland Act 1998. That is a significant element in terms of recognising that it is a devolved matter exclusively; it is not split between the reserved areas of law and the devolved ones.
I freely recognise that the Government have taken steps in terms of new clause 11A(5) of the Tribunals, Courts and Enforcement Act 2007, which states:
“Subsections (2) and (3) do not apply so far as provision giving the First-tier Tribunal jurisdiction to make the first-instance decision could…be made by…an Act of the Scottish Parliament, or…an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.”
However, while the Scottish Parliament does not have the power to modify the law relating to reserved matters, paragraph 2 of schedule 4 to the Scotland Act makes provision that applies only to the rules of judicial review insofar as
“the rule in question is special to a reserved matter”.
Special to a reserved matter would of course be a rule that would relate to something like an immigration tribunal, employment tribunal or employment appeal tribunal. Those are the kind of tribunals that one would think about.
In the 2010 Supreme Court case of Martin v. Most, there was a decision that a general rule that applies to both a reserved and devolved matter is not special to a reserved matter. Therefore, our conclusion is that if we follow the rule in Martin v. Most we get to the position where the decision in Eba—in fact, all judicial review matters under Scots private law—engage the Sewel convention and would therefore require the consent of the Scottish Parliament to be complied with, because of course it is declared in section 28 of the Scotland Act that
“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
Of course, section 28 provides that the UK Parliament can always legislate for Scotland. That is not in dispute. It is whether the Sewel convention is engaged. I hope that that answers your question.
Angela Crawley
It did, thank you very much.
Aidan O'Neill: Can I just add to that very briefly?
The Chair
Very quickly, as we are running short of time and we have a number of questions to come.
Aidan O'Neill: Absolutely. I think the Sewel convention is engaged because, apart from anything else, the reform proposed in the Bill would also require an amendment of section 27B(3) of the Court of Session Act 1988, because that embodies the Cart/Eba test, and that is a statute falling within devolved competence. At the moment, I do not see that the Bill attempts to amend that Act, and I think it needs to do so if it is to apply properly in Scotland. That makes it plain that it is a Sewel convention issue.
Sir John Hayes
Q
“Ultimately, law cannot guarantee individual liberties or good governance unless it is supported by a culture of responsible politics”.
He went on to say:
“The risk of too much intervention by the law in politics is that it can undermine the culture on which law itself depends for its effectiveness in relation to other matters…Responsible politics requires incentives to listen to other points of view and to conduct civilised debate to convince others. None of that is necessary if the authority of the law can be enlisted to force the views of one side on the other.”
Inasmuch as this Bill goes some way to redress the balance between that authority and the democratic will of Parliament, is it a helpful and useful step? In what ways might it go further in redressing that imbalance?
Aidan O'Neill: I am happy to speak briefly on that. There is not an imbalance. We are all subject to the rule of law—Parliament as much as the Executive and the courts—and it does involve a mutuality of respect. There is absolutely no doubt about that, but the Parliament has to respect the basic fundamental rights and the procedures by which those have been maintained over centuries in this country without a revolution. It is all a matter of that maintenance of a mutuality of respect, and I have seen absolutely no evidence to suggest in any way that there has been any breach by the courts of those basic fundamental principles in which all three organs of government—courts, Parliament and the legislatures generally, and the Executives of the Union—seek to respect the rule of law and fundamental rights, and the procedures that allow those to be vindicated.
Sir John Hayes
Q
Aidan O'Neill: I am not sure whether it is the general view. I am certainly speaking from my own experience, having been involved in a number of cases of some import over the past 30 years of my practice. But I am also echoing the views set out in the formal response to the IRAL consultation by the Faculty of Advocates, which generally said that one thing that one ought to avoid in any discussions of the constitution is the notion of absolutism and of the zero-sum game—that if courts say something, that means that somehow the rest of us are—[Inaudible.]
We all benefit from the dialogue that goes on and the maintenance of a balance of powers. Frankly, I would not accept any suggestion that the courts have in any sense in recent years or earlier overstepped the boundaries of their stating what the law is, and the obligations that fall upon all of us to respect it, whichever position we are in. “Be ye never so high, the law is above you”, and that applies of course to lawyers and the courts as well, but it does involve this mutuality of respect, so I am sorry, I am afraid that when one looks at the evidence, there is absolutely no basis for declaring that the courts in recent years or earlier are overstepping any mark.
Andy Slaughter
Q
Secondly, we have heard—particularly this afternoon—about the effect on individual litigants, and that some of the provisions may be a discouragement, whether in mounting a case in the first place or in obtaining a remedy. What is your view on that?
Dr Tomlinson: I have concerns about both provisions. I will summarise my view in headline form.
In relation to clause 1, I would first like to clarify that I do not think it reflects what IRAL proposed; it goes further that what IRAL proposed. The risk with the changes to remedies is that they will leave some individuals without a remedy in their particular case—for instance, where a remedy is prospective only. There will also be a potential chilling effect on claimants. Why would you bring a case if there were a chance that your remedy is not going to apply to you? Why would you take the various risks involved? It is okay, in an academic sense, to separate out the issues of remedies and say, “They come at the end of the case,” but the practical reality is that claimants consider what will potentially come out of a case at the end, so remedies are relevant to that initial analysis on whether to bring a case in the first place.
Clause 1 also potentially puts judges in a position of having more power, in terms of remedies, than they have currently. Given the points that have been made today and in discussion with this panel, I am not quite sure that the way that will operate in practice is what is intended. I think clause 1 will leave some significant uncertainty that might also generate further litigation.
I have already spoken about clause 2, but very briefly, there are two really important points. One is the point of principle: does Parliament want to enact an ouster clause and is that a thing that Parliament should be doing? The second key point is the use of judicial resources: is Cart judicial review a proportionate use of judicial resources? The really basic calculation, to my mind, is that you have a roughly one-in-20 success rate. The cost of those cases is around £364,000 a year according to the MOJ’s figures—not a great deal of money. As I said earlier, the success rate is potentially higher than that.
The financial figures produced by the Ministry of Justice are, I think, a little bit too high in various respects—they include, for instance, the cost of cases won by claimants. Overall, I think there is a question there: is that cost worth it, given the kinds of errors that this Cart system protects against? There can be reasonable disagreements about that. My view would be that the cost of the jurisdiction is worth it because of the errors that it protects against—you have heard case studies of the impacts of those errors today. Those are my concerns in relation to clauses 1 and 2.
The Chair
Michael, do you want to come in? I know you tried to get on the previous question—I do apologise. If you can, please keep it very short. We only have seven or eight minutes left, and two Government Members want to come in.
Michael Clancy: Thank you, Chair. On clause 1, we were delighted that the Government decided to adopt a remedy that was in section 102 of the Scotland Act, allowing for the suspension of an order to give the parties time to fix the problem.
On clause 2, I made reference to the case of CM (Petitioner) in my written evidence to the Committee. It comes to the conclusion that the first tier, upper tier and the Lord Ordinary in the Court of Session may have misunderstood the claimant’s evidence in CM, and that a remedy for that is an extraordinarily well-placed provision for access to justice.
Turning to the last question prior to this one, I align myself with much of what Aidan O’Neill said. His quotation of Lord Denning—that no matter how mighty you are, the law is above you—is very apposite. I am not a politician and I am not going to get involved in a political debate, but it may be the case that the transformation of our legal system from one of a distribution of powers between Parliament, the judiciary and the executive into one where there is much more separation has given voice to some of the concerns. However, we are still in the early days of having that more strict separation of powers, and at some point in the future, when there is a change of Government, I think views might be quite different.
The Chair
Marco Longhi, followed by the Minister. You have five minutes, so a very quick question from yourself, Marco.
Marco Longhi
Q
The Chair
Just one of the panellists. Who wants to take it? They do not look willing. Are you directing it at anybody in particular?
Marco Longhi
Dr Tomlinson.
Dr Tomlinson: I would point out that Cart judicial reviews are not just immigration cases. While the caseload is made up mostly of immigration matters, they are not necessarily all immigration cases. My view would be that there are lots of different appeal routes and mechanisms across the justice system and in different areas of the justice system. As I said earlier, there can be reason for disagreement about that, but in my view the Supreme Court in Cart got the question right, and I think its reasoning was correct that the procedure that is potentially open to review in a Cart judicial review is one where there needed to be a limited—I stress limited because the Supreme Court made it limited—scope for review, and that has proven to be a relatively successful and cheap way of picking up important errors that affect people’s lives.
James Cartlidge
Q
The Chair
You have a minute and a half to answer.
Aidan O'Neill: My experience—paradoxically much to my surprise—has been remarkably positive: that remote courts have worked. In the area that I am primarily involved in, which is public law but also employment cases involving witnesses and the like, there has been greater efficiency, so long as there is the proper ability for people to watch as part of access to justice. From a user perspective and from my experience, there are certainly positive benefits to it, but as Joe Tomlinson said, one must be aware of the potential negativity involved in terms of digital access and the like. However, open justice is an absolutely central point, and now that we have courts that are available online, just as the Supreme Court has been, I see that as a positive development.
The Chair
Thank you very much; that is spot on. I thank the witnesses for attending today’s meeting. We have greatly appreciated your contributions and I thank you on behalf of the Committee as a whole.
Ordered, That further consideration be now adjourned.—(Scott Mann.)
Judicial Review and Courts Bill (First sitting)
Tuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Before we begin, I have a few preliminary announcements. First, if Members wish to remove their jackets, they should feel free to do so, because this room is quite warm. I encourage Members to wear masks when they are not speaking. This is in line with guidance of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room. Date Time Witness Tuesday 2 November Until no later than 10.25 am Sir Stephen Laws, KCB, QC; Professor Jason Varuhas, University of Melbourne; Professor Richard Ekins, University of Oxford Tuesday 2 November Until no later than 11.25 am Professor David Feldman, University of Cambridge; Dr Jonathan Morgan, University of Cambridge Tuesday 2 November Until no later than 2.45 pm Richard Leiper QC; André Rebello OBE, Senior Coroner for Liverpool and the Wirral and Hon Secretary of the Coroners’ Society of England and Wales Tuesday 2 November Until no later than 3.30 pm Public Law Project; Law Society; Liberty Tuesday 2 November Until no later than 4.30 pm Inquest; Justice; Amnesty Tuesday 2 November Until no later than 5.00 pm Dr Joe Tomlinson, University of York; The Law Society of Scotland; Aidan O’Neill QC
Members should send their speaking notes by email to hansardnotes@parliament.uk. Similarly, officials in the Gallery should communicate electronically with Ministers. Please switch any electronic devices to silent. As many of you will be aware, tea and coffee are not allowed during sittings, but water is provided at most desks.
Today we will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before we commence the oral evidence session. In view of the time available, I hope we can take these matters formally.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 2 November) meet—
(a) at 2.00 pm on Tuesday 2 November;
(b) at 11.30 am and 2.00 pm on Thursday 4 November;
(c) at 9.25 am and 2.00 pm on Tuesday 9 November;
(d) at 9.25 am and 2.00 pm on Tuesday 16 November;
(e) at 11.30 am and 2.00 pm on Thursday 18 November;
(f) at 2.00 pm on Tuesday 23 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 15; Schedule 1; Clauses 16 and 17; Schedule 2; Clause 18; Schedule 3; Clauses 19 to 29; Schedule 4; Clauses 30 to 32; Schedule 5; Clauses 33 to 48; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 23 November.—(James Cartlidge.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(James Cartlidge.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(James Cartlidge.)
The Chair
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
The Chair
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Sir Stephen Laws: My name is Sir Stephen Laws. I spent my career in the Office of the Parliamentary Counsel, starting in 1976. From 2006 until 2012 I was the First Parliamentary Counsel, head of the office and responsible for the offices of the Government business managers. Since retirement, I have been a senior research fellow at the judicial power project at the Policy Exchange.
Professor Varuhas: Good morning, I am Jason Varuhas. I am a professor of law at the University of Melbourne, where I am also the director for the Centre for Comparative Constitutional Studies in the law school. My interests lie in public law, private law and the law of remedies.
Professor Ekins: I am from the University of Oxford. I have led Policy Exchange’s judicial power project for the last few years and have written a fair bit about cases involving judicial review that warrant criticism or are problematic. I have made submissions, as have my colleagues, to the independent review of administrative law and in response to the Government consultation, and most recently another paper for Policy Exchange outlining possible amendments that might be made to the Bill.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
Professor Ekins: I will go first, since you directed that at me. It is true that the independent review of administrative law noted a worrying trend in relation to cases in which fairly abstract constitutional principles were used to develop the law in surprising ways. It is true that the review held short of recommending legislation in response, but it attended to this as a problem, and I think it is quite rightly within your field of vision as something that should be attended to. The review noted in particular the perfect legitimacy of Parliament legislating in response to particular cases that it thinks break new ground in problematic ways, which might include the Prorogation judgment or Unison, Evans and other cases. That would also include the Adams case, which the review briefly referred to. It is very true that that case made a significant change that is problematic for our law and government. Sir Stephen and I wrote a paper last year for Policy Exchange noting the shortcomings of the judgment—that it really undermines the Carltona doctrine, which is central to the way in which Parliament confers power on Ministers and how civil servants exercise that power. I think it will be a very good contribution to the rule of law to restore and vindicate that principle.
Sir Stephen Laws: If I can come in, I endorse everything that Professor Ekins said. The Adams case is very disturbing and undoes the assumption on which, for almost three quarters of a century, government has carried on. It needs to be urgently reversed.
On the question of parliamentary sovereignty, one of the great defects of the law as currently applied in proceedings for judicial review is that it does not adequately distinguish between the different sorts of decision making to which it is applied. It assumes that the same or very similar principles, processes and remedies are appropriate for a challenge to what you can call casework decisions by public officials in individual cases as should be applied to challenges to legislative decisions.
It seems to me that courts are deciding what the rules should be in future, hypothetical cases, or what the rules should have been in past cases that are not before them. They need to apply very different principles from those that they apply when they have one case before them and the public official has been doing something very similar—[Interruption.]
The Chair
Your sound has gone, Sir Stephen.
Professor Varuhas: May I come in while Sir Stephen fixes his audio?
The Chair
Yes, you can come in while Sir Stephen gets his sound back.
Professor Varuhas: I also agree that there are some concerns that attend the Supreme Court’s increasing attraction to articulating very broad constitutional values and rights. That was something that the independent review of administrative law drew attention to, and particularly the court’s articulation of these norms not revealing any particular principle. The right of access to courts has perhaps unsurprisingly been classed as of fundamental constitutional value, but not the right to life, for example. Moreover, these values have been used at times, it seems, to subvert parliamentary intention in the interpretation of legislation. I think there is a more general need for a reassertion of legislative or parliamentary intention as the touchstone of statutory interpretation, which would help to counter some of these problematic trends.
On the provision for suspended quashing orders in the Bill before the Committee, part of the rationale for suspended relief is that, in cases where controversial constitutional values are invoked or there are controversial interpretations of statute where Parliament’s intention is in question, relief can be suspended as a prompt for Parliament to enter the fray and inject its voice on behalf of the polity into the delineation of constitutional values and norms, and to make clear, where there is any doubt as to its intention, what its intention was in a particular statutory context. The suspended orders in the Bill are in part a response to that jurisprudence, although, as I mentioned, more reforms could of course be introduced to clarify parliamentary intention as the touchstone of statutory interpretation.
The Chair
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andy Slaughter
Q
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
The Chair
Who wants to take that question?
Professor Ekins: I will go first, and then my colleagues can take a turn. I am always happiest when agreeing with Lord Faulks, and I am certainly not willing to propose a radical overhaul of judicial review. It is a central institution of our constitution and there would be dangers in trying to put it entirely on a statutory basis—a course of action that has been thought through but that I think would be fraught with difficulty.
The question is whether it has gone too far in some domains and in some directions, and that conclusion is entirely compatible with the idea that you do not want to overhaul it at large and that no radical reform is necessary. A correction could be made in certain cases, where judicial review is extended into the heart of the political constitution, as you saw in the Prorogation case, which I know Lord Faulks was much exercised about and was highly critical of, and in other cases, where the techniques involved—we have talked about some of them already—are difficult to square with parliamentary sovereignty and the primacy of Government decision making in relation to the public interest, and where, rather than a supervisory jurisdiction being in play, one has intrusion into the merits.
One can make some significant corrections on the margins—if you call it the margins—without undermining the central value of judicial review. In relation to its value, Ministers should clearly be subject to the law; they should not exceed the scope of their statutory powers, or go beyond the scope of prerogative powers for that matter. The courts have a vital role to play in vindicating those legal limits and in correcting deficiencies in process, where decision making might have flouted the requirements of natural justice or in extremis has simply made an irrational decision, although one would expect that to be less common. So there is undoubtedly a very valuable role for judicial review to play, but that is consistent with noting—as do some senior and retired judges—that what has gone on in some significant, major, politically salient cases is unjustifiable and warrants a legislative response.
Andy Slaughter
Q
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action.
There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
Andy Slaughter
Q
Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a difficult place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, in this Bill, to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
Andy Slaughter
Q
Professor Ekins: I would not imagine that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Ahmed case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
The Chair
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Sir Stephen Laws: I think so; I apologise. I think I detected a problem at this end. There are some systematic approaches that need to be adopted. I think it is right that Parliament should retain its ability to react to individual cases, but that is difficult because time is short and, quite often, by the time the courts have set the framework, they have intervened, in a way, in the political argument.
I would like to come back to the point I was trying to make when I was muted. There are distinctions between intervention by judicial review in casework and intervention by judicial review in legislative actions, because the remedies and principles that are applied to legislative actions are themselves legislative. If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function. The systematic approach needs to distinguish more clearly between judicial review of legislative actions and system management issues, and judicial review of casework.
Professor Varuhas: Obviously, there are many cases in the judicial review casework of the courts that raise no problems whatsoever, but the IRAL report identified some problematic areas where there were patterns where courts were potentially exceeding the institutional and constitutional limits of their role. It was acknowledged in the conclusion to the IRAL report that there were some instances where the Supreme Court had exceeded the supervisory conception of review. It is also important to note that IRAL acknowledged very clearly that it was legitimate for Parliament to legislate in the field of judicial review, including the response to particular judgments. I note that the modern machinery of judicial review was established by legislative instruments and statute, particularly the Senior Courts Act 1981. The entire modern machinery of review is owed to legislation.
A number of problematic areas have already been mentioned by my colleagues. One is that the courts have turned from scrutinising individual decisions to scrutinising and evaluating entire administrative systems and invalidating them, without an acknowledgement that the courts lack expertise and experience in the field of design of large administrative systems.
Another area is in proportionality—where the courts strike a balance between competing considerations. That tends to supplant the role of the statutory decision maker, whose role is to weigh up all those considerations. Then there are the areas we have already mentioned, where the court has taken upon itself to speak for the polity in articulating constitutional values. One would expect that is a role for Parliament first and foremost. Also, there is where the courts have used those values to interpret legislation in the light of the concerns they consider normative appealing, rather than necessarily to give effect to the legislative intention that sits behind legislation.
What the IRAL process showed is that it can be very difficult to legislate as to the substance of judicial review at an abstract level, but what can be done is that responses can be made to particular judgments. There are plenty of examples through history where Parliament has done so. Also, the rules governing the procedure and remedies of review have always been housed in the Senior Courts Act—they are the product of Parliament; Parliament has updated and amended those procedures and remedies over time. This latest batch of reforms, particularly the remedial reforms, can be seen as a further incremental development of the remedial system.
Remedies can be important, because they can provide an outlet for wider concerns, such as the public interest or interest in good administration, and they can provide a way to modulate the boundaries of review, to ensure that it does not stray beyond ordinary practicalities and infringe upon fundamental principles. Again, I think that is entirely legitimate and there are many examples of Parliament legislating as to remedies.
Andy Slaughter
Q
Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.
The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset.
If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government.
Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated.
Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy.
In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back.
Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated.
We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently.
In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
Andy Slaughter
Q
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
The Chair
Who wants to take that one first?
Professor Ekins: I will, since I was talking about Cart just now.
It is true that they have signalled that. I think that this will be an effective ouster clause because it is a perfectly constitutionally irreproachable response to the Supreme Court’s judgment. It restates Parliament’s intention and is protecting a court’s jurisdiction—not an ordinary court’s, but a specialist court’s, albeit one with pretty wide jurisdiction.
I think that it will work as an ouster clause. I do not think that the courts will view it with disdain or try to undercut it as they have done with some other ouster clauses. To that extent, it will provide a framework, partly because it is limited: it is designed to limit judicial review without ousting it altogether. It is a safeguard in relation to true procedural failure, bad faith and so on, which is fine and proper.
I think that it could be used as a framework for other cases. In the Policy Exchange paper that I published last week, I suggested one such context: the Investigatory Powers Tribunal, another specialist court, which was subject to the protection of an ouster clause enacted in 2000, as David Davis mentioned in his Guardian article last week. That ouster clause was undercut by the Supreme Court in 2019, using some of the problematic techniques that we have talked about—openly departing from legislative intent and distorting the meaning of the statute.
I think that Parliament should enact an ouster clause, modelled on clause 2, that protects the Investigatory Powers Tribunal. There will be pretty sharp limits on how often you want to use the clauses, of course—this one is controversial, and they will all be controversial. Whenever there is a suggestion that there is not a proper context for ouster, the controversy will be higher.
We have talked before about intrusions that judicial review has made on some relationships at the heart of the political constitution. There is a case to be made for ouster, or for limitation of review, in that context. You will be aware of the Dissolution and Calling of Parliament Bill, which is making its way through Parliament now. Clause 3 of that Bill is a partial response to the Prorogation judgment, and quite rightly so; it protects the prerogative of Dissolution, when it is restored, from judicial review. I think that that is justified and that you may have to act similarly in relation to Prorogation law or other aspects of the political constitution.
I would not expect the approach to be widely used, but I think that there are contexts in which it is reasonable and justified.
Sir Stephen Laws: I agree with all of that. As a drafter of legislation, whenever I was asked to draft an ouster clause, as I was from time to time, my response was always: “There’s no hope of it ever succeeding, unless you’re presenting a politically and legally justifiable alternative route for people who would otherwise be going to the court.” That, of course, is what the Cart judgment does, for the reasons that Professor Ekins has given: the upper tribunal is a proper court; the Investigatory Powers Tribunal is a proper remedy; and, in the case of the Prorogation judgment, the remedy is political because that is how the constitution is set up. In relation to the major matters of the relationship between Parliament and Government, it is Parliament that has the remedy, ultimately, in being able to pass a vote of no confidence in the Government and require their resignation or a general election.
Professor Varuhas: On clause 2, the first thing that I would say is that it derives from a clear recommendation from the expert independent review of administrative law and has subsequently been subject to a full Government consultation. Former Law Lords have also come out in support of the policy, including Lord Hope, who is the former Deputy President of the Supreme Court, and Lord Carnwath, who—importantly—was the inaugural Senior President of Tribunals and was subsequently a Law Lord on the Supreme Court. He said that the ouster would restore what was always intended: that the upper tribunal should have equal status with the High Court. That was the intention behind its designation as a superior court of record. As colleagues have stressed, that is a really important point: the upper tribunal has equivalent status to the High Court.
There is a further point to be made, which relates to how many bites of the cherry one person might have. It is worth reminding ourselves what a Cart judicial review is. It will have been a claim in the first-tier tribunal that will have been unsuccessful. The claimant will then seek permission to appeal to the upper tribunal. The first-tier tribunal will decline permission, and then the claimant will appeal to the upper tribunal against the declination of permission to appeal to the upper tribunal. The upper tribunal will have declined permission to appeal. It is not clear, given the upper tribunal’s status as a superior court of record, that one then needs a further bite of the cherry by going to the High Court via judicial review, and potentially all the way up the judicial hierarchy.
Whatever the case is more generally, in this instance the clause is justified, and it is a targeted response to a particular problem. Also it is not a pure ouster, because in clause 2(4) the path remains open for claimants to bring a judicial review in the High Court in serious instances of illegality, such as where the upper tribunal acts in bad faith or in fundamental breach of principles of natural justice. That is an important point to bear in mind: there is still a route to the High Court in cases of serious unlawfulness.
The Chair
A few Members have indicated they wish to ask questions, so I will take them in order.
Tom Hunt (Ipswich) (Con)
Q
The Chair
Who wants to take that one? Is it a googly?
Professor Ekins: I will start. Clearly the mandate on which the Government campaign and secure a majority is significant. It is true that page 48 of the Conservative party manifesto makes a commitment to look again at the constitution and to take measures to ensure that judicial review does not become “politics by another means”—a phrase Lord Sumption used in his Reith lectures and also used by the High Court and the Court of Appeal in judgments in 2019. It is also true that the commitment does not spell out what it will involve, and that is partly what the Committee is considering and the Government have been thinking through—as has the independent review of administrative law.
There should be no constitutional question about the entitlement of Parliament to legislate on judicial review. The Lord Chief Justice of England and Wales, Lord Burnett, has made that crystal clear in various public statements. The question, of course, is the merits of the proposals—the devil may be in the detail. It would be wrong, as we have discussed, to overhaul judicial review. It would be a mistake—not improper, but a mistake—to try to put it on a statutory footing at large, but changes can be made where problems have arisen.
The political salience of judicial review has clearly risen in the last five years—indeed in the last decade or two. If one can identify the problematic trends and respond to them in a targeted and careful way, one would be acting properly and in accordance with the manifesto, even if I would be cautious myself in connecting any particular proposal to the manifesto because it was not quite that specific.
Sir Stephen Laws: I have nothing particular to add to that, as it all seems right. In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that. Plainly, there can be no question about Parliament’s right to legislate, and the need to do so has been demonstrated.
Professor Varuhas: I would add that the concerns reflected in the manifesto around the judicial review and whether the courts had in certain contexts overreached were vindicated in the IRAL report, which did pinpoint at multiple times areas of concern. This set of reforms, regarding remedies and the Cart ouster, have been through an incredibly thorough process. An expert independent panel was constituted, the Independent Review of Administrative Law, with five distinguished academic lawyers and others drawn from the profession, chaired by Lord Faulks. The reforms in the Bill derive from that panel’s recommendations.
The panel stressed the need for reforms to emphasise remedial flexibility and it recommended the ouster of Cart judicial reviews. Those recommendations were then put out to general consultation—a Government consultation. At each stage there were a lot of consultation responses, so the reforms we see before us are the product of an incredibly thorough, expert-led process. To my mind it is not a surprise that the reforms are well justified in the end.
Sir John Hayes
Q
The Chair
Who wants to take that question? Anybody?
Professor Ekins: I will go first. I have been highly critical of the Privacy International judgment, and I share the view that the majority judgment, or Lord Carnwath’s judgment, with which Lady Hale and Lord Kerr agreed, was outrageous. Those three judges are no longer on the Supreme Court, but that judgment is part of the common law and it does warrant a response. There were many other things going on in May 2019, so maybe it is not a surprise that it did not get much public attention, but that judgment did constitute a very serious attack on some fundamentals of the constitution.
Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think. The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute, and the primacy of legislative intent in interpreting statute is one of the fundamental ways in which the rule of law is secured. It is true that the rule of law is often bandied about as though it warrants adventurous judicial action that cannot be squared with the existing constitutional law or with the terms of statute, because we are going to make it better and we are going to impose further controls on the Government or public bodies.
As Lord Hughes, who was on the Supreme Court at the time, said, that is to confuse the rule of law with the rule of courts. You do not see that just with the Privacy International case, we see it in the Evans case, involving the Freedom of Information Act 2000, where a clear statutory power was undone. Three judges interpreted it so that it does not exist any more, and another two judges, also during the majority, attacked its exercise in a different way. This is a worrying trend, and the independent review noted the Evans case.
If Parliament can notice and respond to those judgments, it will both correct the law that has been undone and make clear that the technique is seen and is not tolerated as legitimate. In cases where judicial review breaks new ground and is being carried out in a way that is inconsistent with statute and long-standing principle and rules—the Prorogation judgment is very large here—the litigation is an extension of political argument and a way of getting the courts to weigh in on your side in a controversy. That is destructive of the courts’ reputation and of the political constitution that should be framing those arguments, and it is not vindicating the rule of law but undoing it and undoing the political foundation for our parliamentary democracy.
Sir Stephen Laws: I would agree with that. It seems to me that the fundamental principle that should be upheld as part of the rule of law is the need for legal certainty and predictability. Judicial law making undermines that because it produces new law that nobody was able to expect, and because of the myth that the common law has always existed, it also creates the further injustice of retrospective effect.
If ordinary citizens cannot predict with certainty before they act what conduct will escape censure, that is a serious injustice. If public officials cannot be sure that what the law allows them to do, adherence to the law for them ceases to be a matter of principled compliance and becomes instead a straightforward commercial exercise in risk management, and that is a very bad thing for the management of public affairs generally.
The Chair
There seems to be consensus on that. I am conscious of time; Jason, would you like to come in on that quickly?
Professor Varuhas: I think the rule of law is an important value, but all too often, it is used to denote what someone thinks is good. It is often invoked without elaboration and as a trump card. The rule of law is an important value, particularly the principle of government and the law, but other values and aspects of the rule of law can be important.
As Sir Stephen alluded to, you can see that with the proposal for prospective orders, for example. You might have a decision-making procedure created by regulation, with many decisions made under that in regard to particular people. If you invalidate that ad initio, the consequence will be that all those decisions in regard to all those individuals would be thrown into doubt. They would have planned their lives on the basis of the decisions that had been rendered in regard to them.
On the one hand, you might say that voiding ad initio and rendering a decision a nullity upholds the rule of law, but it can undermine other aspects of the rule of law, such as certainty, predictability and people’s ability to plan their lives in the light of decisions that have been made in regard to them. The beauty of prospective orders is that they can be calibrated to save those past decisions and provide certainty, finality and confidence in the administration of justice for those individuals, while ensuring that the system complies with legal requirements going forward.
The Chair
I am conscious of time. As I said earlier, we have to move on to the second panel soon, so this will be the final question. I call Dr Caroline Johnson.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Q
Professor Varuhas: One of the motivations for the provisions is to provide the courts with flexibility to adapt remedies to the particular needs of the given case. That is a response to a series of Supreme Court decisions that have held, contrary to long-standing authority, that a funding of unlawfulness automatically voids administrative measures as if they never existed. That has never been the position, because there has always been remedial discretion to modulate the effects of unlawfulness.
The Bill reasserts that remedial flexibility so that remedies can be tailored to the particular needs of relative interests and values implicated in the facts of the case. In proposed new section 29A(8) of the Senior Courts Act 1981, you have a list of factors that will guide courts in exercising their discretion, and those factors are drawn from the common law, so dovetail with pre-existing doctrine. Importantly, they give litigants and the Government fair warning of the factors that will bear on remedial decisions. Subsection (8) requires that
“the court must have regard to”
those factors, which has the benefit that the court will apply the same framework in every case. That provides consistency of principle and ensures transparency, because the court will have to work through those particular factors to reach a conclusion regarding what type of order ought to be given on the facts of the case.
In my view, one problem with subsection (9) is that it erects a presumption. It is a particularly weak presumption, and therefore one might question what the justification for it is, but more generally I am not necessarily in favour of a presumptive approach one way or the other, because that can undermine the court’s capacity to adapt to the particular facts of the case and respond to the particular factors that arise—the public interest in good administration, the interests of third parties and so on. Necessary flexibility is built into the scheme, but there is also fair warning of the factors that will be taken into account pursuant to subsection (8), which is a particularly important provision in that regard.
The Chair
I am conscious of the time, and I think the Minister will want to ask the final question, so I will take a short response to Dr Johnson’s question from one of you. Then I will move across to the Minister before we close the panel.
Professor Ekins: Briefly, I agree with everything that Jason said. One could add a little more detail perhaps to the factors in subsection (8), tying in with Sir Stephen’s point about the significance of whether something is a legislative act. That seems like something that should be at the forefront of the court’s mind. It is a weak presumption in subsection (9). One could either remove it or tailor it, narrowing it so that the presumption arises only where the decision making in question is legislative in character or on a general policy decision, rather than casework, to use Sir Stephen’s term. At the moment, it is a very broad presumption, and a very weak one, and it might be more useful if it were narrowed and applied in a more focused way.
The Chair
Quickly, Sir Stephen.
Sir Stephen Laws: I am a legislative drafter. I am used to people asking me to guarantee when a discretion is conferred that it will be exercised in the way that they wish. I think I agree with Professor Ekins that more detail would be desirable.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Q
James Cartlidge
It probably has to be Professor Varuhas.
Professor Varuhas: I reiterate what I said before in response to your question. The phrase on the number of bites of the cherry comes from a speech given by Lord Carnwath, who raised this point and considered that it was disproportionate that an applicant in this context should have so many bites of the cherry, given that the upper tribunal has the status of the High Court. It is a judicial body, independent of Government, that is staffed by senior members of the judiciary with specialist expertise. Given the credentials of the institution, it seems disproportionate to allow a further three or four bites of the cherry after an application has proceeded through those stages and been found not to have merit. I think the point is well made.
I will abuse my position to add one further point on the remedies provision. Professor Ekins reminded me that I meant to say that one discretionary factor that should be added under subsection (8) is the public interest, which is a curious omission because the public interest can be seriously prejudiced by decisions on remedies in the interests of the economy, national security and so on. That should be factored into the remedies.
Although I went slightly off topic at the end, I certainly agree—
The Chair
Order. I am afraid that brings us to the end of our time. I thank our witnesses on behalf of the Committee for their evidence today.
Examination of Witnesses
Professor David Feldman and Dr Jonathan Morgan gave evidence.
The Chair
Q
We will hear oral evidence from Professor David Feldman and Dr Jonathan Morgan, both of the University of Cambridge, for just under an hour. Without any further ado, I ask them to make their introductory addresses.
Professor Feldman: Thank you, Chair. I am David Feldman, the emeritus Rouse Ball professor of English law at the University of Cambridge and emeritus fellow of Downing College, Cambridge.
I have been working in this field for some 40 years, and I take a great interest in what is going on. In relation to the proposed new provisions set out in clauses 1 and 2, I suggest that one should approach them on the basis of the constitutional background and the importance of judicial review and access to courts.
On the constitutional importance of keeping public officials within the limit of the powers set by Parliament, parliamentary sovereignty requires that there should be independent interpreters and adjudicators to keep the people to whom statute delegates power within the limits set by Parliament. That is complicated by the requirement of the rule of law that requires obedience to law by Government and scrutiny by an independent judiciary on the lawfulness of behaviour.
The combination of parliamentary sovereignty and the rule of law, together with article 6 of the European convention on human rights, where applicable, requires access to independent and impartial courts and tribunals and it requires the availability of effective remedies for violations of law, where those are found to have taken place.
The Chair
Professor Feldman, may I interrupt before you go any further? We obviously want to use the majority of our time for questions from Members. Although I am happy for you to give a brief presentation, I want to introduce our other witness so that we can open up for questions. If you could bring your opening remarks to a close, I can get Jonathan Morgan to introduce himself. The floor is still yours, but please be conscious of that.
Professor Feldman: The conclusion is that the provisions in clauses 1 and 2 affect access to courts and the effectiveness of remedies and, therefore, should be examined with very great care to make sure they are justified.
The Chair
Q
Dr Morgan: My name is Jonathan Morgan. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. Like any academic, I would be delighted to address you on the sexy subject of constitutional theory, but having heard what my learned friend has experienced, I will not do that now. I will just say a couple of things about the Bill before us.
It seems to me that clause 1 is highly welcome, but it needs two significant amendments to make it perfect. Clause 2, which is on the Cart review, is compatible with the rule of law, but there are some very real costs to doing this, and Parliament needs to confront them. One of the costs is that the very few people who succeed in Cart reviews will not have that avenue in future. I am happy to substantiate those in questions, but I will not enlarge on that now.
Dr Johnson
Q
Dr Morgan: I think you have put your finger on it, lawyer or not, because Cart deals with a fairly unusual situation, exactly as you have said. This is to do with the level of appeals within the judiciary. Critics of clause 2, who say that this is doing violence to the rule of law and is setting a bad precedent by immunising the Government from being judicially reviewed, are therefore somewhat missing the point. Clause 2 has its cost, but I do not think it immunises Government decisions from judicial review. It simply says how many reviews or appeals there should be within the judiciary. I was here for the previous panel of witnesses, and in terms of whether you have permission to review within the court system, the number of “bites of the cherry” is a good way to put it.
One overall criticism of the Supreme Court might be that it failed to give proper respect to the tribunal system as a branch of the judiciary. It had a slightly legacy, old-fashioned view of the tribunal system as something that needed to be under the supervision of the High Court, and so on. That is why Lord Carnwath, who, as we have heard, is a former Senior President of Tribunals, has been a critic of the Cart decision. It is important to see clause 2 as to do with arrangements within the judiciary. Yes, there is an ouster clause in clause 2, but it does not immunise administrative or Government decisions. It immunises decisions of what is, in effect, a court by another name—the upper tribunal.
The Chair
Dr Feldman, do you want to come in on that? I noticed that your volume was quite low. If possible, could you raise your voice a little bit?
Professor Feldman: I beg your pardon; I did not hear that.
The Chair
Q
Professor Feldman: Thank you. The only thing I would add to what Dr Morgan has said is that judicial review is seen as a general safety net. One of its functions is certainly to scrutinise Government decision making and action, but it is there as a backstop to deal with unlawful action by any public body. One starts with the presumption that judicial review is available unless there is some specific reason for excluding it. It is clear that the justification for interfering with access to judicial review may be stronger where a body is a judicial body, and where a litigant has already had the chance to have his or her case heard by an impartial and independent tribunal, rather than simply by an administrative body.
Dr Johnson
Q
Professor Feldman: The answer is that the courts held in Cart that being a superior court of record does not immunise a body from being subject to judicial review. For practical purposes, the High Court is immune to judicial review, because it is the High Court that carries out judicial review. It extends, as they used to say, to all inferior courts and tribunals—that is, below the level of the High Court—as well as public officials. It is a matter of basic principle that the upper tribunal was to be subject to this, even if, as Lord Justice Laws said in Cart, the upper tribunal would be seen as the avatar of the High Court.
Dr Morgan: In my view, this is what went wrong in 2007, so apologies to any Members who were in Parliament then. In 2007, Parliament thought that by designating the upper tribunal as a superior court of record, it would immunise it from judicial review. That is what the Government argued in Cart, but they failed to convince the High Court, the Court of Appeal and the Supreme Court.
To ingratiate myself with Members, I will say that the fault was not only that of Parliament but that of the Leggatt report on tribunals, which said that there should not be judicial review of the upper tribunal and that by designating it a superior court of record, Parliament would immunise it from judicial review. I am afraid that Sir Andrew Leggatt turned out to be wrong on that when it got to the courts. It is true that Leggatt had said that there should be an express ouster clause, which Parliament did not put in. If Parliament in 2007 had gone for the belt-and-braces approach and not relied only on the status of the upper tribunal as a superior court of record, Cart would never have happened and we would not be here today discussing it. In a way, this problem has been 20 years in the making.
Dr Johnson
Q
Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.
Andy Slaughter
Q
Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.
Andy Slaughter
Q
Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
Andy Slaughter
But a court might attempt to impose—
Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
The Chair
Q
Professor Feldman: I think that is completely right. There is a big distinction between quashing orders and declarations for this purpose. What Ahmed (No. 2) did was to eliminate the difference—a quashing order quashes, whereas a declaration can only declare that a body has a duty or has breached a duty or has not breached a duty, and that is something that is not limited as to time. I also agree with Dr Morgan as to the effect of Ahmed (No. 2) on lower courts. However, I think there is a big distinction to be drawn between the suspending of a quashing order where, as the Bill says, the retrospective impact remains when the quashing order eventually takes effect, and a prospective-only order, which seems to me to raise significantly more problems of principle and of practice.
Andy Slaughter
Q
Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.”
In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective.
The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state,
“if the impugned act is…upheld”
is very odd. Subsection (5) says,
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong.
I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
The Chair
Dr Morgan.
Dr Morgan: I agree with what David Feldman said, but perhaps I could suggest a solution. This is an amendment that should be made to clause 1. Proposed new section 29A(2) to the Senior Courts Act 1981 says that the order
“may be made subject to conditions.”
I think the court should have the power to set as a condition of making a prospective-only order or suspending the order that compensation should be paid to the particular applicant. In my view, that would be a way of squaring the circle of postponing the effect of quashing an entire piece of legislation—saying that is not going to happen today, but is going to happen in six months’ time to give the Government time to prepare.
Of course, that would work great injustice on a successful particular applicant who has paid to take their case to court, has won and then does not get any redress at all. However, if the court were empowered to grant compensation, that could be a way of achieving both those things. I am a public lawyer, but I also teach contract and property law. If you get an injunction in a tort case, the court might suspend the injunction for a period of time and, if it does so, it will give compensation during the period of suspension. It is on that sort of model that I think this could work.
You could argue that while proposed new section 29A(2) says orders
“may be made subject to conditions”,
the explanatory notes say that those could be any conditions the court likes. However, given that the courts cannot award compensation for public law wrongs, it is very doubtful whether that implicitly contains a power to award compensation. I think that proposed new section 29A(2) should be amended to say that orders may be “made subject to conditions including, if the court sees fit, compensation.” That might be a way of reconciling those competing objectives.
Andy Slaughter
Q
Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power.
Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle.
First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated.
Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step.
It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
Andy Slaughter
Q
Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.
I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out.
If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
Andy Slaughter
Professor Feldman, do you agree with that?
Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f):
“any other matter that appears to the court to be relevant.”
This opens up the field very nicely; I do not see anything there that is necessary.
Andy Slaughter
Q
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Professor Feldman: Is that for me?
Andy Slaughter
For either, or both.
Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect?
In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.
I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified.
Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered.
Dr Morgan: My position—
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.
Sir John Hayes
Q
Dr Morgan: There was a debate earlier about whether this should be described as tit for tat, which I do not like either, but doing it on a case-by-case basis. If you are not a lawyer and you read through the Cart judgments, you will see that it is all highly technical stuff about the number of appeals you should have within a particular structure. I have never heard anyone suggest that the judges in Cart were guilty of judicial activism. I think it is a relatively technical problem that has created a lot of expense and lots of hopeless judicial reviews, and the Government are taking action to address that.
I will not keep saying “sexier subjects”, but the more egregious examples of muscular judicial review have been mentioned earlier: Privacy International, the Prorogation case, and Evans v. Unison. There is a case for Parliament to reverse them. In my view, it has a constitutional right to do so if it wishes, but they should probably be taken one by one. Maybe we need a different Bill to do that, and the Government can tell us whether that is their intention, but the two clauses here deal with some real problems in a fairly unflashy way. Ouster clauses might be needed if we are to reverse the other cases, but I think that has to be debated separately. It is not really within the scope of the Bill at all.
Sir John Hayes
Q
On the issue of judicial activism, is this the right Bill to explore that, or are you suggesting, as you implied just a moment ago, that perhaps another piece of legislation will be introduced to deal with that in the light of the Evans case, the Miller case and the other cases that we have seen prevailing over a number of years? There is a challenge for democratic Government that needs to be addressed.
Dr Morgan: In my view, it would be a shame if the valuable things that are in the current Bill were lost because other things were put in that were frankly much more controversial. I am not the manager of parliamentary time; I do not know how easy it is to get another Bill going through. There is always a temptation—the Minister laughs—to tag things on, so maybe this is an opportunity not to be missed. I have read Richard Ekins’s list of desirable amendments, which would keep Parliament going for about five years, and with heated rows, if all those were put in.
Sir John Hayes
I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
The Chair
Professor Feldman, do you want to come in on that?
Professor Feldman: Only to say that I would not want to be thought to agree with the suggestion that there has been a sudden rush of judicial activism. Judicial activism is extremely difficult to define, and people who say there is a lot more judicial activism than there used to be tend to pick on a very small number of fairly high-profile cases over the last few years. It may be that there are more of those than one might have expected in the length of time passing. Having been involved in this subject for over 40 years, as I said before, it seems to me that there has been a process of gradual—it has been gradual—development of principles of administrative law and their application since the 1950s, so we are talking about getting on for 70 years.
Nothing has happened suddenly and things have not all gone in one direction; there has been progress in one direction and then a pushback. I suspect we may be going through a pushback at the moment, within the judiciary itself. Judicial activism is a term that I do not really understand and I would not want it to be the basis of legislation.
Sir John Hayes
Q
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
The Chair
Q
Professor Feldman: I will just say that lying behind this there is a difficulty that faces people drafting legislation like this. The onus is to be general and to apply to all kinds of decisions and rules, whereas, in fact, quashing a rule has rather different implications from quashing an individual decision, so the approach to it has to be similarly different.
Marco Longhi (Dudley North) (Con)
Q
Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it.
Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.
Marco Longhi
Thank you. I am glad that you referred to the words “less extreme” in your commentary.
Professor Feldman: I agree with what Dr Morgan said.
James Cartlidge
Q
Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure.
The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one.
Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading:
“Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.]
In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation.
That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.
James Cartlidge
Q
I had the great privilege of attending the Lord Chancellor’s swearing in. One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time, which is incredibly precious. Arguably, there is a context which goes back some years which seems to recognise on both sides that this is disproportionate in resource terms.
Dr Morgan: I agree. This does not seem to be a partisan point. It is about how best to deploy the resources of the judiciary. I hope the judges have been consulted on this reform, but retired judges who speak on it in the House of Lords seem to be sympathetic to the objectives.
Dr Johnson
Q
Dr Morgan: The answer might be to a slightly different question. I refer the Committee back to some things that were said in Cart itself. Both Baroness Hale and Lord Phillips, two Presidents of the Supreme Court at different times, said the reason why there are so many immigration and asylum challenges is because people are desperate. Lady Hale said:
“There is every incentive to make the road as long as possible, to take every possible point, and make every possible application.”
She went on to say she did not blame people, because people are desperate, and we can hardly blame them for doing this, but she said that that was why there was such a problem. It does create a resource problem for the courts, because in the immigration and asylum system there is bound to be a huge number of applications, even if most of them are doomed to fail. In fact, Lord Phillips seemed to recognise that Cart was sowing the seeds of a great problem. He said:
“The stringency of the criteria that must be demonstrated will not discourage a host of applications in the field”.
He was the judge who came closest to saying we should not have had Cart judicial reviews, as they are now known, at all.
That is one reason why this creates such a problem: people will try every avenue to challenge a decision, even in a fairly hopeless case, for reasons that we can all appreciate. That is why I think an even more stringent approach than Cart is perhaps needed to close down the avenue, if that is what you want to do.
Dr Johnson
Q
Dr Morgan: The statistics that the Government presented in their response to the consultation used a criterion of success that I think answers your question. A successful Cart judicial review did not just mean that the High Court sent it back to the upper tribunal; you then had to win in the upper tribunal, so you actually had a good case on the facts. The Government came up with a figure of 3.5% success in that sense, so I do not think that they could be written off as legal technicality cases, although some people do successfully get a Cart JR and then fail when it goes back to a substantive hearing, and it could fairly be said that some of those are legal technicalities.
Members in the Second Reading debate referred to various case studies of actual live cases where something had clearly gone badly wrong and it was only a Cart JR that rescued it. I cannot remember whether it was 50 cases per annum or 50 cases in total—it is not a huge number—but in each case, it really matters to someone’s life.
The Chair
Are there any final questions? We are running short of time, but I will take one more if anybody wants to come in.
There are no further questions from Members, so I thank both witnesses for coming in to give evidence in person. It has been very useful indeed.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Judicial Review and Courts Bill (Third sitting)
Thursday 4th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
The Chair
I have some preliminary announcements. I remind Members that they are expected to wear a face covering, except when speaking or if they are exempt. That is in line with the House of Commission’s recommendations. Please also give each other and staff space when seated and when entering and leaving the room.
I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre on the estate or at home.
Observing the Members present, on the Government Benches at least, only the payroll vote are wearing a mask, although a couple more are putting on masks now as a result of my recommendation. I hope that during the course of today’s proceedings, Government Members give serious consideration to wearing a mask. Obviously, I am not wearing one, because I am chairing the event, and officials either side are at a safe distance.
Hansard colleagues will be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea, coffee and other beverages, apart from water, are not allowed during sittings, so I recommend Members comply with that, otherwise they might not be called to speak.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment takes place when we come to the clause to which the amendment relates.
The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on any or all the amendments within that group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments, I shall again call the Member who moved the lead amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know, please.
Clause 1
Quashing orders
Andy Slaughter (Hammersmith) (Lab)
I beg to move amendment 12, in clause 1, page 1, line 8, leave out from “order” to the end of line 9.
This amendment removes the statutory power for courts to award prospective only quashing orders and preserves the status quo in relation to the retrospective effect of quashing orders.
The Chair
With this it will be convenient to discuss the following:
Amendment 35, in clause 1, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 40, in clause 1, page 1, leave out lines 15 to 18.
See explanatory statement to Amendment 12.
Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.
See explanatory statement to Amendment 12.
Andy Slaughter
It is a pleasure to be here under your chairmanship this morning, Sir Mark. I hope that we will have some interesting debates over the next few weeks. I also welcome the Minister to the first Bill he is to take through the House. I will also mention—[Interruption.] I was going to mention my own side, but they seem to have temporarily left the room for urgent Chamber business. I will not take that personally—not at this stage. In his absence, however, I am grateful to my hon. Friend the Member for Stockton North, who as shadow Courts Minister will lead for the Opposition on much of part 2 of the Bill. Like most Justice and Home Office Bills, this is a bit of a Christmas tree Bill—we are getting near to Christmas—so while I will lead on part 1, on coroners and employment tribunals, I am grateful for his expertise. I am also grateful to my hon. Friends the Members for Lewisham East and for Liverpool, Wavertree, who are current or former members of the Select Committee on Justice, and to my hon. Friend the Member for Blaydon, who keeps us all in order.
The Conservative members of the Committee are all here, I think, except for the right hon. Member for South Holland and The Deepings. I am wearing my intermediate glasses, which means I cannot see anything close up or far away. We did not hear a great deal from the Conservatives in the evidence sessions. Other than the right hon. Gentleman, they kept their powder fairly dry, but I will try and provoke them to more animation today.
Amendment 12 seeks to excise the most obnoxious proposal in part 1 of the Bill: prospective-only quashing orders. To give some context, the Government will present the Bill as a moderate, reasonable adjustment to the art of judicial review—no more than a rebalancing. The right hon. Member for South Holland and The Deepings gave some cover to that in his questions and comments in the evidence sessions. I do not want to put words into his mouth, but he suggested that it was a rather milk-and-water Bill and could go much further in reigning in judges to allow Parliament freer expression, if I understood him correctly. I disagree. I think that the Bill is a misreading of the purpose of judicial review and has an unhealthy focus on the constitutional periphery of its operation, rather than the practical effect it has on asserting the rights of the citizen against the state.
Antony Higginbotham (Burnley) (Con)
Would the hon. Member not accept, however, that in the 2019 election those of us on this side of the House stood on our manifesto that said we would look to reform judicial review? The Bill has not just been brought forward; my electorate in Burnley explicitly voted for it because they had seen the chaos in the 2017 to 2019 Parliament.
Andy Slaughter
I always defer to the electorate of Burnley, all of whom, I am sure, had a copy of the Conservative manifesto. I will come back to the hon. Member’s question, because I first want to give some context around the recent history of how we got to this Bill.
We took evidence from a large number of very senior experts. Even the Government-invited experts, if I may call them that, did not really agree with the Government’s view either—not even Professor Ekins, who had innumerable suggestions for other interventions by the legislature to reverse individual decisions but did not suggest codification or enshrining judicial review in statute, which this Bill does not seek to do. We disagree that the Government have been restrained or that the Bill needs more heft, either around the doctrine or individual case examples. We think it already goes too far.
We will argue today in Committee that prospective-only quashing orders strip claimants of their right to remedy and make the unlawful lawful. That presumption is in favour of suspended quashing orders, prospective-only quashing orders, fettered judicial discretion, and, in effect, a judicial process with heavy-footed statutory direction. The collateral damage caused by this interfering with a well-understood process of defining the legal limits of state actors will cause unintended victims and create more uncertainty and satellite litigation.
On clause 2, we will also argue that the use of ouster in Cart/Eba cases will not only leave very vulnerable persons in danger, but will open the door to more frequent incidents of legislation ousting the jurisdiction of the High Court, using the Bill as, in the Government’s own words, a template for further ouster clauses.
I am extremely grateful for the help and suggestions on how to structure these comments—from the Clerks for the way they group and help perfect the amendments, to the House of Commons Library for its excellent briefings and the many organisations for who sent us their thoughts. They are too numerous to name them all, but I must mention those that gave evidence on Tuesday: Liberty, Justice, Public Law Project, The Law Society and Amnesty International UK—all well known in the field of administrative law and human rights. We also received briefs from environmental, educational, equality and immigration non-governmental organisations and charities.
I mention that because the thrust of many of the arguments against the Bill are that it limits the ability of civil society in all its forms and of the individual to challenge the state. That is important because the attempt to characterise judicial review as the creature of lawyers and lefties, which to this Government appear to be two sides of the same coin, could not be further from the truth.
Judicial review is simply the modern name for the centuries-old common-law supervisory jurisdiction of the superior courts to ensure that decisions of public authorities, including statutory tribunals, respect the limits on their powers that are imposed by law. The existence of the courts’ common-law jurisdiction makes it possible for a person to go to court and argue that a decision or action of the state was unlawful. The court can rule that the decision or action was unlawful if it was illegal, irrational, tainted by procedural impropriety or a disproportionate interference with a fundamental right. It is one of the most fundamental checks and balances within the UK constitution to ensure that public authorities act fairly and in accordance with the law. It also gives individuals a route to challenge officialdom where it may have overstepped its powers.
To quote the right hon. Member for Haltemprice and Howden (Mr Davis), as I may do on more than one occasion:
“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”
Some of the framework rules for judicial review are set out in the Senior Courts Act 1981, but it is important to appreciate that the courts’ power of judicial review is not something judges have been given by Parliament, but an inherent common-law jurisdiction dating back centuries to when the courts first began holding power to account. Therefore, much of the content of these rules are spread across these different cases.
If a court finds that the decision or action was unlawful, it will make a declaration to that effect if it is just and convenient to do so. It has the power to make three specific orders: a mandatory order, which orders the state to do something; a prohibiting order, which prohibits the state from doing something; or—relevant to these discussions—a quashing order, which rules that a thing done by the state is void and has no legal effect. On the other hand, a declaration is simply a formal statement setting out the legal state of affairs. We will see the importance of that when we talk about suspended quashing orders later on. A declaration is non-executory in the sense that it does not command anyone to do anything; it simply declares what the legal position is.
A quashing order is different as it is executory: it orders something concrete and has legal consequences. A quashing order rules that a decision was void and therefore has no effect. Rather than simply declaring, for example, that a planning decision was unlawful, a quashing order would quash that decision meaning it has no continuing effect and has never had any effect from the moment it was made.
The long-established default position in judicial review cases is that where unlawfulness has been established, for example because a public authority has acted beyond its powers, a declaration is insufficient and one of the specific orders must be given. According to Lord Bingham, speaking in a judicial capacity, under the rule of law
“the discretion of the court to do other than quash the relevant order or action where such excessive… power is shown is very narrow.”
The Bill is not the first time in recent years that a Conservative or coalition Government have sought to rein in judicial review. Between 2010 and 2015, various proposals were consulted on and legislated for. In particular, in 2013, changes to the civil procedural laws reduced time limits for bringing claims in planning and procurement cases, introduced new fees and denied some renewed hearings. The Criminal Justice and Courts Act 2015 introduced provisions on leapfrog appeals, wasted costs orders and the refusal of some remedies.
However—interestingly—the most controversial proposals on legal aid and standing originally designed to be in that Act were not pursued. It was a case of rhetoric meeting the practice of the courts and the former withering in the gaze of the latter. Perhaps that will happen again with these proceedings—in the other place if not here—because we are again in the territory of crowd-pleasing rhetoric, or Back Bencher-pleasing rhetoric, coming under scrutiny.
Alex Cunningham (Stockton North) (Lab)
Can my hon. Friend think of any reason why a Government or any other body should be afraid of the judicial review process if they think that they got it right in the first place?
Andy Slaughter
I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.
People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?
Janet Daby (Lewisham East) (Lab)
Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?
Andy Slaughter
I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.
Antony Higginbotham
The hon. Gentleman seems to be putting forward a narrative whereby people listening to these proceedings, who do not know what is going on, might think that judicial review is going away somehow. Actually, that is not what will happen as a result of the Bill; it seeks to continue the evolution in ensuring that judicial review is used proportionately. Will the he confirm my understanding that judicial review will still be available for people who want to challenge Government decisions? It is really important that the general public do not think that a potential remedy is disappearing.
Andy Slaughter
The hon. Gentleman is being very sharp this morning, because he is always one point ahead of me. I am coming to exactly that in discussing how these provisions were formulated, and I accept entirely what he says. The Bill could have gone a lot further, and there were proposals to go further in the Government’s consultation, but that does not mean that there are not significant changes in the Bill. I do not agree that it simply tidies things up or that the changes are a logical progression, and I will try to persuade him of that slowly but surely.
Under the Bill, claimants and others affected by unlawful decisions made by the state could find that they win their case but get no proper remedy and see no real impact on their lives, or on the lives of anyone else who has been negatively affected. If I am right about that, it is a significant change. On the hon. Gentleman’s point, we were promised—I think in the same 2019 Conservative manifesto—overarching constitutional reviews of criminal law and democracy, but they have not materialised. It may be that wiser heads have prevailed, but it may also be that rather more quick and dirty results are being demanded.
The Government have opted instead for a series of reviews. In this discipline, the independent review of administrative law was established under Lord Faulks. It asked whether judicial review was being abused by creating needless delays and allowing political matters to be litigated through the courts. There was concern from many in the legal community that the review would lead to the courts being sidelined and the Executive being granted too much power without enough accountability. However, IRAL’s recommendations were mainly practical and incremental, and they did not contain the radical proposals that some had feared.
The panel was against codifying the grounds for judicial review. It thought that ouster clauses were appropriate only in limited circumstances, and it disapproved of prospective-only quashing orders. Perhaps for that reason, the then Lord Chancellor took the two IRAL recommendations that he liked—on suspended quashing orders and on reversing Cart—and conducted his own consultation. The consequences of that second bite, or some of them, are in the Bill, though it still has too little red meat for some people. The Bill proposes a range of further reforms that risk weakening the rule of law and narrowing access to justice for vulnerable people.
Clauses 1 and 2 seek to limit the vital check on Executive action and create a statutory presumption that remedies available in judicial review should be suspended or made prospective-only. Clause 1 gives judges the power to issue suspended and prospective-only quashing orders, the latter of which would prohibit future unlawful decisions without invalidating any prior actions based on that decision. The Bill undermines accountability and creates additional and unnecessary barriers to individuals seeking redress when they are affected by unlawful actions of public authorities.
Paula Barker (Liverpool, Wavertree) (Lab)
Does my hon. Friend agree that removing retrospection could mean illegal acts are thus made legal, and that there is very little remedy for those who seek recompense?
Andy Slaughter
My hon. Friend has put her finger on the main objection, but it is not the only objection. It will cause a great deal of confusion, and I do not think the courts will like it. They will therefore try to find ways around it, as courts tend to do in such circumstances, and there will be uncertainty over whether something was lawful, and whether it was lawful for all purposes. Again, I will come on to those issues, but this just opens cans of worms. The Government also assert that this is a simplifying and clarifying measure, but it will have exactly the opposite effect.
Marco Longhi (Dudley North) (Con)
I take issue with the hon. Member’s characterisation of how the courts may work under the new jurisdiction of the Bill, when it is enacted. He also mentioned the expert advice that we heard the other day. Jason Varuhas, professor of law at the University of Melbourne, stated:
“I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 10, Q6.]
Andy Slaughter
I am not persuaded by that. I do not want to disagree with the eminent professor, but I am tempted to say, “Two professors, three opinions”, and we had at least six professors. I thought it interesting that they did not all say what I expected them to say. There was some disagreement. The civil liberty organisations did not agree on everything—some supported the suspended order and some did not. I thought the openness of the first panel on that was quite refreshing. It is true that there are views on both sides, and that will always be true.
In the passage that the hon. Gentleman read out, I specifically disagreed with the idea that the Bill gives judges more power and discretion. In a literal sense, if we give someone a new type of order, we could say, “That has given them a wider range of options”. If we constrain how they can use those orders or we give them orders that they have not sought, however, it has exactly the opposite effect. We should be securing fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect this country’s international reputation for upholding and promoting the rule of law, not precluding practical access to public law remedies.
Unless the Bill is amended as we suggest, it will negatively affect the ability of ordinary people to hold the Executive to account and safeguard their own rights. That is the other side of the coin. We are, of course, interested in the respective powers and the balance between Government and the courts, but we are also very concerned—sometimes more so—about the individual citizen’s rights and their ability to get redress. Our laws and legal processes allow ordinary people to challenge Governments and public authorities when they get it wrong. They help us stand up to people in power. We all deserve effective access to justice and a fair hearing. Judicial review is a vital and necessary tool for good, effective and accountable policy making by Government and public bodies, and it is hobbled by this Bill.
Currently, if a claimant wins their case and succeeds in showing that a decision was unlawful, there will be consequences for the public authority. If the claimant was directly affected, that also means justice, in some form, for them and potentially for others affected by the decision. They benefit because when the court delivers its judgment that the decision that is being challenged was unlawful, it means that the decision was invalid and will need to be remade. The normal outcome of a successful claim that the state has acted unlawfully is that the court will confirm its conclusion by issuing an order stating that the state’s decision is quashed. That is a normal remedy for the wrong that has been done. The public authority must face the consequences of its unlawful actions, such as by retaking the decision or deciding it differently, and the claimant benefits from that happening. Sometimes they may also get some other form of remedy, as a result of the recognition that what happened should not have happened.
If the claimant was not affected by the unlawfulness themselves, others will usually have been, and they may also benefit from the judgment and the order. If the policy is found to be unlawful, anyone affected by it will benefit from that finding. The use of our judicial review powers has helped to ensure that equality and human rights law are respected, prompting positive changes in policies and practices. Many public bodies are subject to judicial review claims, and the prospect does not hinder good work, but rather helps to ensure that compliance with the law and good practice are at the forefront of decisions.
Under clause 1, the outcome could be that even when a claimant wins their case, they will not get any benefit; they will be in the same position as when they brought the case. The same will apply to anyone else who has been negatively affected—nothing will change for them.
Alex Cunningham
In his evidence to the Committee, Sir Stephen Laws said:
“In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 14, Q8.]
Does my hon. Friend agree that it is lamentable that even those who were called by the Government to give evidence have reservations about current relationships between the courts and politicians, and how they could be worsened in future?
Andy Slaughter
It is not unique to this Government to be found wanting or to be challenged by the courts in such a way. Other Governments have not found favour with the courts and may have resented their intervention, but on the whole those Governments have sucked it up, if I can put it that way. However, this Government seem to take the view—we have recent evidence of this—that if they do not like the way that proceedings are going or tribunals are conducted, they can simply change the rules or change the tribunal.
I agree with my hon. Friend. I do not want to be overly dramatic, but these are worrying times. The Ekins view, which I described in the evidence sessions as tit for tat—a decision is taken and if the Government do not like it, they have a ready-made power to change it—is bad enough, but tinkering with the court process is worse.
Alex Cunningham
There was much discussion in the evidence sessions about tit for tat, or whichever expression one wishes to use, and it is lamentable. Surely the Government have always been able to address issues that have embarrassed them, and they do not have to take this broad-brush approach to negate that possibility in the future.
Andy Slaughter
Much of the evidence suggests that the public are quite sophisticated about this. They see that all Governments make mistakes, get caught out and have to change their minds. In the end, the public make a judgment about a Government’s overall record. It is quite wrong for Governments to be, as this one is, so thin skinned that any criticism requires not just a response but, effectively, a punishment of the person or body who does the criticising.
What are the consequences of the changes that clause 1 of the Bill makes to the Senior Courts Act 1981, to provide for quashing orders either not to take effect until a specified date or to come into force without any retrospective effect? As has been said, the usual practice is that the quashing order comes into force immediately and operates as if the decision that has been ruled unlawful had always been null and void. Remedies in judicial review are discretionary and will often result in a declaration that the act was unlawful, with remedial action left to the public body. However, when a court decides to issue a quashing order, it is right that the unlawful decision should stand no longer and that those affected should have proper redress. Because a court can make this remedy after finding that a public body acted unlawfully, the quashing order renders the unlawful act null and void; the act never had any legal effect, and therefore its consequences must be unwound.
Whereas quashing orders have hitherto been made by the courts to confirm that a decision by a public body is of no legal effect, the Bill provides that the effect of such orders may be suspended until a prescribed time, potentially subject to conditions—temporarily validating a decision that has been judged unlawful. In deciding whether to suspend an order or make it prospective-only, the courts must have regard to a range of factors, including any detriment to good administration that may arise from its decision. The Bill requires a court that has decided to make a quashing order to suspend the order or to limit its retrospective effect if doing so offers
“adequate redress in relation to the relevant defect”,
unless the court
“sees good reason not to do so.”
Thus clause 1 would limit the effectiveness of quashing orders.
The quashing order is a powerful tool that ensures that unlawful Government decisions can be overturned, and that those who have suffered the consequences can obtain real redress. The courts have the power to suspend the effect of quashing orders, although the power is rarely exercised. Although the case law on this is not absolutely certain, it is reasonable to argue that courts already have this power. Suspension operates like a time lock on the unlawful action, meaning that the court can delay the effect of its ruling and give the public authority time to sort out its mistake. Limiting the retrospective effect ensures that the remedy has effect only on the date that it is made, rather than affecting things that have already been done. If the court suspends the quashing order or makes it prospective-only, things done before the suspension or things done in the past are treated as if they are valid. The current law strikes the right balance in reserving this remedy for exceptionally rare cases.
As I have said, it is important to remember that all remedies in judicial review are discretionary. In exercising their remedial discretion, the courts will consider a range of factors and will take into account the impact of quashing on certainty and the needs of good public administration. Where significant administrative disruption or chaos could result from a quashing order, the courts have the power to issue a declaration instead, and they often do. Often, the court will simply make a finding that a public body has acted unlawfully and leave it to the public body to determine what action should be taken in response to that finding.
Research by the Public Law Project shows that, in challenges to statutory instruments, a declaration rather than a quashing order is the most common remedy following a successful judicial review. That practice shows that the courts deal very well at the moment with all those circumstances, and it calls into question the need for clause 1. In any event, there are already limitations on a court’s ability to grant quashing orders. For example, section 31(2A) of the Senior Courts Act 1981 requires the High Court to refuse a remedy if it appears
“highly likely that the outcome for the applicant would not have been substantially different”
if the public authority had not acted unlawfully, unless there are
“reasons of exceptional public interest.”
Section 31(6) of the same Act also allows the Court to refuse relief on the grounds of undue delay
“if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
Claimants’ access to quashing orders is therefore already strongly regulated. However, an immediate and retrospective quashing order is an important tool for righting injustice and ensuring that the Executive acts only within its legal powers. Combined with the existing controls on quashing orders, the proposed reforms weigh the scales of justice too heavily in favour of the Executive. Prospective-only quashing orders would invalidate an unlawful act only from the point of the court order onward, leaving past conduct, including conduct complained of by the claimant, untouched.
Clause 1 goes significantly further than the recommendations made by IRAL. The IRAL panel recommended legislating for a discretion to make suspended-only quashing orders. It did not recommend legislating for prospective-only quashing orders, and it recommended against a presumption of limiting the effects of a quashing order in this way. Subsection (9) of proposed new section 29A, inserted by clause 1, creates a presumption that these weakened quashing orders “must” be made where to do so would provide “adequate redress”—absent good reasons. Such a presumption not only goes against the Government’s stated intention to provide flexibility for judges, but risks encouraging the use of these new orders in circumstances where it would be unjust and unfair to do so. As the Government acknowledge in their consultation response,
“Presumptions were not recommended by the IRAL Panel and generally met with scepticism from respondents to the consultation.”
However, it does not appear to have had any effect.
Suspended and prospective-only quashing orders undermine the rule of law, which requires that no person should be subject to unlawful action and that individuals have access to an effective judicial remedy against unlawful measures. Article 13 of the European Convention of Human Rights further protects people’s rights to an effective remedy. Although the Bill requires that the court considers whether a provision offers adequate redress before making a suspended or prospective-only quashing order, it does not preclude the possibility of an order being made without adequate redress. We are concerned about the potential for suspended or prospective-only quashing orders to impact third parties affected by an impugned human rights or equality decision and the implications for their ability to access legal aid. It is unclear whether cases likely to result in suspended or prospective-only orders would meet the test of sufficient benefit to the individual, and therefore justify a grant of legal aid.
Most concerning of all is the prospect that either or both types of orders could be mandatory for the judge, as the clause contains an apparent presumption that they will be made where there is “adequate redress”. The Bill does not specify who for, but one of our amendments deals with that. The Bill as it stands will reduce judicial discretion to give an appropriate remedy. I will say more about that later.
Clause 1 risks undermining individuals’ ability to hold the Government to account. The provision could also mean that individuals are found guilty of offences made under unlawful regulation or are unable to be compensated for the impacts of unlawful state action. The point of judicial review is to ensure good decision making by public bodies. It is concerned not with the result in itself, but that the right procedures are followed and that the body is operating within the law. Within the separation of powers that forms our political system, it is an important check by one branch on another, acting in the interests of the public. The Bill does nothing to improve the decision making of public bodies; in many ways it will have the opposite effect. Making challenges harder to bring and remedies less effective may make things easier for Government, but at a cost to the general public.
I will give two or three examples of previous cases. I remind the Committee that the Government’s own election manifesto promised to
“ensure that judicial review is available to protect the rights of the individuals against an overbearing state”
and to secure access to justice for ordinary people—laudable aims. These new remedies will not, however, uphold that promise. I will demonstrate that with a short synopsis of some case studies.
In the case of the British Medical Association, the Health Secretary issued the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019, which tried to introduce a power to suspend or withhold payments of NHS pensions, where an employee had been charged with an offence. There was no right of appeal from that power, and the suspension did not come to an end when the employee was acquitted or where proceedings were withdrawn.
At the time of the case, that power had never been exercised. The British Medical Association brought the case as a matter of principle: that potentially innocent medical staff could be denied a pension simply for being charged with an offence that they did not commit. Finding the regulations to be unlawful, the judge granted a quashing order.
Given that the case did not relate to an actual use of the power or an individual who was a victim of the power, the judge might have regarded a suspended or prospective-only order as adequate, meaning that under the Bill, the judge would have been expected to suspend the effect of the order or make it prospective-only. However, in the time that it took the Health Secretary to consult on the draft and lay new regulations, there would have been nothing to prevent Ministers from exercising the unlawful powers, as doing so would have been valid under proposed new section 29A(3) to (5) of the 1981 Act, which makes otherwise illegal uses of power legal.
Alex Cunningham
My hon. Friend is giving a series of good examples as to why the Government’s proposals are flawed. In his evidence to the Committee on Tuesday, Dr Morgan said:
“I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.”
He went on:
“I also think, if subsection (9) is taken out, subsection (8) could be taken out as well.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 24, Q23.]
So there is clearly support for the line that my hon. Friend is taking.
Andy Slaughter
I am grateful for that quote from Dr Morgan, which is far more learned and eloquent than anything I can come up with. His evidence was very measured and showed nothing other than looking at the Bill with a fresh pair of eyes. On some of the decisions he supported the Government, and in some cases he could not see any point or purpose.
There is grave concern about the impact of any changes to the law of judicial review on children and young people with special educational needs and their families. Children and young people with special educational needs often rely on legal remedies such as judicial review to ensure that they receive the special educational provision and wider support to which they are legally entitled. Judicial review is an essential remedy in cases where there is no other way that a complaint can be resolved—for example, by complaining directly to the public body concerned or the local government and social care ombudsman. Any changes to the law on judicial review should take account of the particular factors relating to children and young people with special educational needs.
I will give a few examples of situations that arise quite commonly; Members may well have been involved in some such cases. Local authorities may fail to comply with statutory timescales for issuing or amending an education, health and care plan for a child or young person, resulting in the child or young person missing special educational provision or schooling. A local authority may fail to make the provision set out in a child or young person’s EHC plan, resulting in the child or young person missing education; fail to comply with the order of the first-tier tribunal; or decide to stop providing the home-to-school transport to which a child or young person is entitled, meaning that they cannot get to their place of learning. A school governing body may refuse to admit a child or young person despite the school’s being named in the child’s EHC plan, where there has been no formal exclusion. Those are just a few examples of how judicial review can be used to ensure that children and young people receive the special educational provision and support to which they are entitled by law. It is essential that it remains a meaningful option for them and their families.
The measures, if enacted, will weaken the effectiveness of the remedies available to the courts and will deny an essential remedy to children and young people with SEND and their families. The Bill will deter people from using judicial review as a way of righting unlawful decisions by public bodies. Any change to judicial review should encourage access to justice, not limit it. It will also limit claimants’ access to legal redress for unlawful actions, which will take away any accountability of Government or agencies for unlawful action that has already taken place.
I will make some very specific comments on the first group of amendments. The lead amendment is amendment 12, which is the only one I will press to a vote. Amendments 40 and 41 are contingent on amendment 12.
Proposed new section 29A(1)(b) of the Senior Courts Act 1981 allows for quashing orders to be made including provision
“removing or limiting any retrospective effect of the quashing”—
in other words, a prospective-only remedy. For prospective-only orders, despite a state decision or action’s being found unlawful, the order quashing it would be forward-looking, leaving the individual who brought the case without proper redress for what has already happened to them and, potentially, with no change in their circumstances at all.
Proposed new subsections 29A(4) and (5) set out the implications of that change. The decision or act in question is to be treated as valid and
“unimpaired by the relevant defect”,
for all purposes, for the period of time before the prospective effect of the quashing order. As has been expounded countless times by the courts, the rule of law requires that those exercising public power should do so lawfully. However, the Government would be under absolutely no legal duty to address the injustices caused by the unlawful measure, and there would be no scrutiny as to the effectiveness of such remedies. We do not consider that to be an appropriate or principled solution.
In issuing a prospective-only quashing order, the courts would be determining that an unlawful measure should be treated as if it were lawful retrospectively, which is problematic for many reasons. First, it undermines the rule of law, which at its core dictates that all are subject to the law, that no person should be subject to unlawful action, and that individuals have access to an effective judicial remedy against unlawful measures. Prospective-only orders entail a direct rejection of those principles, allowing unlawful executive acts to stand and, therefore, preventing individuals who were previously impacted by them from challenging them. As recognised by the consultation, that could lead to severe unjust outcomes. By introducing prospective-only remedies, the Government are making another concerted effort to insulate themselves from accountability at the cost of those who have been let down by a public body and anybody who may be in the future.
Prospective-only remedies have the potential to create opportunities for injustice in individual cases, to weaken the rule of law and to introduce unnecessary layers of complexity into an already functioning system. This is another example of the Government wasting time and resources on fiddling with an area that works well, while many other areas of the justice system cry out for attention.
Janet Daby
Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.
Andy Slaughter
Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.
In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.
The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.
The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.
Liz Twist (Blaydon) (Lab)
I refer to the evidence submitted by the Independent Provider of Special Education Advice on the impact of the changes on those with special educational needs, highlighting the importance of the ability to appeal at that level. When we look at the effects on individuals and organisations, rather than the dry words, does my hon. Friend agree that this change could have a significant impact on those people who feel that they are not getting justice and are seeking redress?
Andy Slaughter
I am grateful for my hon. Friend’s intervention, and I think she is following my argument. What I am trying to do through a series of case studies—some hypothetical, some that are likely, and some that have actually happened—is look at how those cases could have been different had this piece of legislation been in effect, specifically looking at the effect on individuals. That may be hundreds or thousands of individuals, or it may be one individual, but these are often people for whom this is the only form of redress, and it is hard to see how a prospective-only remedy would provide a just outcome to an individual claimant.
Turning back to the Unison case, it arbitrarily distinguishes between people who have been impacted by the unlawful measure before and after the court judgment, undermining certainty, consistency and equal treatment under the law, which was the point of my hon. Friend the Member for Lewisham East. Individuals who have not litigated but who are impacted by an unlawful measure have just as much need of the law’s protection as those individuals who will potentially be impacted in the future. Some unfortunate people would be denied justice, with no proper remedy even when the court said they were right.
Looking at the position in other jurisdictions, it is notable that courts are usually prepared to hand down a prospective remedy only in cases of constitutional importance, or cases that would have serious economic repercussions for a large number of good-faith relationships. In practice, that happens extremely rarely, and those are very limited categories that have been carefully contained on the basis of subtle judicial reasoning and incremental developments.
The European Court of Human Rights has also held in a very clear judgment that certain remedies which have prospective-only effect cannot be regarded as effective, and therefore would be a violation of article 13 of the European convention on human rights. Judges already have discretion over what remedy to give, but this Bill will increase their focus and attention on limiting the use of full quashing orders and mandate the consideration of factors that undermine successful claimants’ legitimate interests. It will embolden defendants who are found to be on the wrong side of the law to argue that they should not suffer the full consequences of their unlawful actions. Public trust in the system will be undermined where judges are seen to validate or immunise previous unlawful conduct through prospective-only remedies. That, in turn, may disincentivise legal compliance by those in power.
The Government line is that judges are sensible and will strike the correct balance in practice, but that is cold comfort for individual claimants and is not in compliance with international law. In creating a statutory presumption and mandating consideration of these new remedies, judges are being clearly signalled to, and may well be less likely to—and, in fact, may be required not to—award effective remedies for claimants against any common-sense understanding of justice.
The result of limiting retrospective effect would be that a claimant could have the court agree that the decision made by the Government or public body was unlawful, but would not have recourse to a retrospective remedy. That would allow the Government to avoid having to compensate people who are victims of its previous unlawful behaviour. If claimants know at the outset that it is likely that they could win but nothing would happen, why bother going for judicial review at all?
The group that trades under the name Equally Ours, which briefed us, has significant concerns about the likely effect of deterring people from seeking judicial reviews if this clause is unamended. If prospective-only remedies are applied, the effect would be that unlawful decisions or actions would be treated as lawful until the quashing order came into effect. Retrospective quashing orders recognise the unlawful decision or action and provide a remedy.
Bringing a judicial review has many disadvantages to applicants, not least the cost, uncertainty and length of the process. The key motivation for many applicants—for the impact on them to be remedied—will be lost if a prospective-only order is made. With that in mind, it appears likely that the introduction of prospective-only remedies would have a chilling effect upon future potential claimants. With their use not only allowed but encouraged, that sends a strong signal to an individual who has been wronged by a public body that their actions are not worth challenging: even if they win, their situation may not improve.
Paula Barker
I would like to draw my hon. Friend’s attention to the evidence of Louise Whitfield, who stated:
“If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 51, Q72.]
Does my hon. Friend agree that clause 1 seeks to stifle people’s access to justice?
Andy Slaughter
I am grateful for that intervention, and I hope from what I have said, and from many of the interventions by hon. Friends, that it is clear that what we are most concerned about here is the impact on an individual claimant.
Bringing judicial review is not an easy thing to do; it is not a common remedy. Funding it, finding representation and getting into court are all difficult. I hope when the Minister responds—I do not have much more to say before I will allow him to—he will address some of those points, particularly in relation to what he thinks the effect of the measures in clause 1 of the Bill will be on individuals who currently have the ability to bring a successful claim.
As I said, a chilling effect seems likely. If these measures are not only allowed but encouraged, that sends a strong signal to an individual who has been wronged that the actions are not worth challenging. Even if a prospective-only quashing order is not used in a particular case, its mere availability would serve as a serious disincentive to claimants seeking to bring a judicial review if a claimant cannot be sure that they will benefit from the judicial review even if it is successful.
A further financial hurdle could be placed in front of potential claimants as legal aid would likely become even harder to obtain. Applicants for legal aid must be able to demonstrate that there would be a tangible benefit to the litigant if successful. It may become difficult to satisfy this requirement where the litigant stands a high chance of being awarded a prospective-only remedy, meaning that more prospective applicants could be denied legal aid, forcing them to abandon their claim.
With no legal aid and little prospect of benefiting even if successful, there is seemingly little incentive for someone who has been negatively affected by unlawful action to bring a case. Prospective-only remedies would therefore have a serious chilling effect on the system of judicial review, disincentivising bringing a case in such a way. Moreover, they would have a damaging effect on good governance; the threat of judicial review is a powerful tool in encouraging good decision making by public bodies.
As well as depriving proper redress for individual claimants and others who may have been wronged by unlawful decisions, prospective-only remedies also have the potential to cause more general harm. The impact of a prospective-only quashing order and the transition between a measure being valid and then quashed going forward will be difficult and unwieldy to navigate, including for public bodies.
By way of example, it is unclear whether proceedings to pay a penalty notice could be brought against an individual for breach of an unlawful byelaw if the events occurred prior to the byelaw being quashed prospectively but the charges and/or proceedings are brought afterwards. The introduction of prospective-only quashing orders removes the certainty provided by the position that a measure if found to be unlawful will then be treated as such. Laws should be able to guide conduct to enable persons to be able to act in accordance with the law. A position where a measure is both recognised as being unlawful but is also to be treated as if it were lawful is contrary to this.
As one Department said in its submissions to IRAL—from those that we have been able to see—
“the rule of law requires predictable rules around which citizens, businesses and government can plan their activities and lives”.
Prospective-only remedies weaken the rule of law because they allow the Government and public authorities to act without fear of meaningful repercussions. The Government are effectively encouraged to take risks and act unlawfully, and the only consequence is that the decision will eventually be reversed should it be successfully challenged in the future. That undermines Government accountability, and in turn undermines the quality and effectiveness of decision making.
Marco Longhi
It is a pleasure to be able to follow the hon. Member. Colleagues will be pleased to know that I will be trying to hold their attention for only about three or four minutes.
I am certain that the hon. Member will have regard for the assertion by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), that the Bill is a power grab by Government. Would he not agree that that is an odd thing to say, given that the Bill provides the courts with additional powers around remedies in a way that ensures practicality and efficiency, and enables courts to give consideration to the effect of remedies in a way that is not readily applied in the current framework? That surely serves to evidence the shadow Secretary of State’s lack of understanding of what our courts actually need and of the flexibilities built into the Bill. As the Minister said on Second Reading, far from weakening quashing orders, as the shadow Secretary of State said, these new remedies
“strengthen quashing orders and thereby strengthen judicial review.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]
On prospective remedies, I would like to give two examples that show that this concept is not new but has precedence in our legal system. Judges have limited the retrospective effect of quashing orders in some instances in the past, such as in R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015. Therefore, these remedies do not change the position of judges but act to encourage a wider use of the new quashing order modifications.
It is important to state that these remedial modifications are not being pursued to bypass Parliament but are in fact focused on resolving practical issues that arise during judicial review cases. The concept of prospective-only orders is not novel or unique. Under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, courts in the devolved Administrations have a power to make such orders where decisions are outside devolved competence. The Government wish a similar concept to be available in all cases of judicial review in England and Wales.
Anne McLaughlin (Glasgow North East) (SNP)
May I point out that there is no presumption in any of the devolved legislation, and that is primarily what we are arguing about here? It is not about having the ability to do this; it is about the presumption that it has to be a default position.
Marco Longhi
Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.
These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.
I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).
In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.
We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.
Anne McLaughlin
If the Minister simply wants to put more in the judges’ toolkit, and does not expect a presumption in favour—or a default position, as I said earlier—will the hon. Lady support one of the upcoming amendments to stop that presumption?
Dr Johnson
I am talking here of a suspended order specifically. Personally, I would trust the judges to have the discretion to look at the case in front of them, the law as it stands and the situation in which they find themselves, and make a measured judgment. Under this clause, they have the discretion to use the orders as they see fit and proper, and I have absolute trust in our judiciary to use them properly.
Ordered, That the debate be now adjourned.—(Scott Mann.)
Judicial Review and Courts Bill (Fourth sitting)
Thursday 4th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 35, in clause 1, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 40, in clause 1, page 1, leave out lines 15 to 18.
See explanatory statement to Amendment 12.
Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.
See explanatory statement to Amendment 12.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is a pleasure to serve under your chairmanship again today, Sir Mark. I welcome all members of the Committee. I hope we can look forward to an interesting and robust debate on this important Bill.
I welcome the Labour spokesman, the hon. Member for Hammersmith, to his position. He is returning after six years, I think, to a similar post. While he obviously looked in significant detail at the Bill, he almost strayed into political caricature, suggesting somehow that we, as a party, thought all lawyers were lefties—I think that is the phrase that was used. That is quite interesting, not least if one thinks of the Secretary of State, for example, who is a lawyer by background, but not, I think, a leftie. The hon. Member for Stone (Sir William Cash) is a solicitor and is certainly not a leftie, and neither was the late, great Baroness Thatcher, who was a barrister by training and one of the greatest Prime Ministers in our history—a victor in the cold war, no less.
My hon. Friends the Members for Sleaford and North Hykeham and for Dudley North were not as chronologically comprehensive in their contributions as the Labour spokesman, but they made some extremely important points. Both of them stressed the point about trusting the judiciary. We certainly do not see lawyers as lefties, nor are we engaged in any kind of conspiracy or attempt to somehow engineer a confrontation with the judiciary. On the contrary, the whole basis and premise of the Bill is to trust in the ability of judges to use their discretion to reach judgments that reflect the most appropriate remedy, given all the factors in a specific case at hand. That is the underlying principle.
The amendments in this group relate to the measures on so-called prospective-only quashing orders—those being quashing orders with limited or no retrospective effect—and the ability of the courts to apply conditions when using either a prospective-only or suspended quashing order. Amendment 12 attempts to remove entirely the ability of the court to permanently limit or remove their retrospective effect. The belief behind the amendment seems to be that limiting the retrospective effect of a quashing order will always unfairly affect the claimant—the person who has brought the judicial review. We wholly reject that argument and take the contrary view.
I believe there is significant benefit in providing powers to limit or remove the retrospective effect of quashing orders, obviously in specific cases. Normally, when a decision is quashed, the effect of that quashing is retrospective, in that it deprives the decision of ever having had legal effect. As such, regulations and decisions are deemed never to have been made, and therefore a person undertaking what they thought was a lawful act on the basis of those regulations or decisions may in fact have been relying on something that had no legal effect whatsoever. That is particularly problematic for certain regulations that many people rely on every day in good faith.
The hon. Member for Hammersmith said that the sort of cases where there would be wide-ranging side effects from a quashing order, particularly of an economic or social kind, would be rare. They are certainly not huge in number. The Public Law Project—an organisation that we all recognise has significant expertise in this matter—did a study in 2015, which found that, of a sample of 502 judicial reviews, 18% related to procedure and policy and 8% to wider public interest. These judicial review cases that have much wider impact are not insignificant in number, but there is a much more important point to be made. Even if the number is small, the number of persons affected is likely to be many thousands. That is why it is so significant.
I raise again the real case study that I brought up on Second Reading. I will keep coming back to it because, while there are many other examples one could use, it neatly summarises where one would use one, if not both, of the remedies we are introducing, and do so not to undermine the rights of the claimant or the victory in court that they obtained—far from it—but to avoid detriment in the real world to our constituents.
I gave the example on Second Reading of general licences for the control of wild birds and the chaos that was caused when those licences were revoked, leaving farmers unsure whether actions they had taken in the past on the basis of those licences would suddenly land them in trouble. I remind the Committee that it was Natural England that immediately decided to revoke the licences, through fear of a judicial review. The case did not go through; it was the fear of one that meant Natural England was given advice that it should withdraw the licences.
As a rural MP, I received the correspondence at the time, so I know that that caused great concern, frustration and, as I quoted the National Farmers Union saying on Second Reading, anger among farmers and others. It is all about this point of good faith.
Sir John Hayes (South Holland and The Deepings) (Con)
The Minister is right, and of course the fact of the matter is that judicial review is available to responsible and sensible people who are pursuing a grievance, but it is also available to vexatious and irresponsible people who are pursuing an argument that has been settled elsewhere, but that they seek to perpetuate through the process of law. That is why it needs to be redirected to its proper purpose in the way the Minister is outlining.
James Cartlidge
I am grateful to my right hon. Friend, who has considerable expertise in these matters and speaks on them very well. By the way, I am not suggesting that the Natural England case—it did not go to court, but there was a threatened judicial review from an organisation called Wild Justice, which I think Chris Packham is associated with—was vexatious. I make no comment on that. The point is that it would have achieved its aim, which was to have those particular licences declared unlawful, so the claimant would have been successful.
As I said at the time, had the remedies in the Bill been available, the legal advice could have assumed that at least one, or both, would have been used. If the prospective remedy, which we are debating in respect of these amendments, had been used, it would have made the many thousands of farmers, gamekeepers and others who were using those licences for shotguns far more certain that there would not be some kind of action, which from their point of view would be essentially retrospective, regarding the way they had used those licences that could undermine their rights, even though at the time—this is always the key thing about retrospectivity—they would have been using them both in the belief that they were lawful and in good faith. That is why this point is so important.
Anne McLaughlin (Glasgow North East) (SNP)
The Minister is talking about giving judges the right to use suspended or prospective-only quashing orders, but that is not what the Bill is about. The Bill is about the presumption that they will use those orders unless they can demonstrate good reason not to. Why not do what he is saying this means, and what other people seem to think this means, and just allow judges to use these orders?
James Cartlidge
We will debate the presumption in more detail, because there are a number of amendments to it in the later groups. With the greatest respect for the hon. Lady, I would simply say that that is an erroneous interpretation of the presumption. First, the Bill does bring in those new remedies, irrespective of the presumption, but the presumption is there. It does not force the judge to use them; yes, it highlights the fact that they are there and that we would expect them to be used were it appropriate, but what it ensures is that, whether they are used or not, the reasons and the thinking are written down. In a nutshell, this is about encouraging and expediting the accumulation of jurisprudence, which is incredibly important in a common-law system.
I understand the concern that such orders should not be used to prevent claimants from getting just outcomes. That very point was made on Second Reading by the Chair of the Justice Committee. However, I submit that the clause as drafted already protects against that. The list of factors for the court to consider in using the new remedies, which is set out in subsection (8), includes at paragraph (c) a requirement for the court to have regard to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
In other words, it must consider the interests of the person or persons who has brought the judicial review.
In addition, the presumption at subsection (9) requires the court to use the new modifications for quashing orders only where it would offer “adequate redress”. Furthermore, subsection (2) allows the court to impose conditions on any remedy it gives, which is another way that the court can tailor any remedy to ensure it properly serves the interests of justice.
I therefore submit that the ability to limit or remove retrospective effect does have a clear purpose and that there are already sufficient safeguards in the provisions before the Committee to ensure the interests of the claimant are fairly balanced against the interests of good administration. The clause gives the courts the necessary flexibility to tailor its remedies appropriately.
Amendment 35 seeks to remove the subsection that states:
“Provision included in a quashing order under subsection (1) may be made subject to conditions”.
However, the whole point is that the ability to set conditions is very important, so that the court can strike the right balance in how it gives a remedy. For example, to avoid detriment to a claimant or those in the same situation, the court might specify that the defendant cannot take any new action to enforce the impugned decision, but is nevertheless afforded time to amend or correct it by virtue of a suspended quashing order. Removing the court’s ability to set such conditions would not be in the interests of justice or flexibility.
The final two amendments in the group, amendments 40 and 41, were originally connected to amendment 39, which the hon. Member for Hammersmith has withdrawn, and now relate to amendment 12. They are consequential amendments that remove elements of the clause that seek to provide further clarity in respect of the ability to limit or remove the retrospective effect of quashing orders. I agree with the hon. Gentleman that if we were to accept amendment 12, those amendments would logically follow. However, for the reasons I have explained, we do not accept the rationale of amendment 12 and, as such, we also oppose amendments 40 and 41. I urge him to withdraw his amendment.
Andy Slaughter (Hammersmith) (Lab)
Welcome back to the afternoon sitting, Sir Mark. I can reply fairly briefly to this short debate.
The hon. Member for Dudley North said that a power grab by the Government was not what was happening in this Bill. However, whatever language is used, the Bill does alter the balance of power. In that sense, it is a movement of power from the courts to the legislature, for reasons I will explain more under the next group of amendments. He said that it adds powers to the judge’s armoury. Technically that may be true, but if the net effect in reality is to create uncertainty and fewer protections for claimants, that is not a welcome development.
Marco Longhi (Dudley North) (Con)
The hon. Member referred earlier to his leftie lawyers. In describing them in such a way, he is implying that he does not have confidence in these people doing the right thing. What we are doing is giving them the ability to use their discretion.
Andy Slaughter
I think it is actually the senior judiciary, and I would never ascribe any political motivation to them whatsoever. I take the point that the Deputy Prime Minister may well not be a leftie lawyer, but it is the Prime Minister, I think, who coined the phrase rather than me. I do not know who he had in mind exactly; I hope not the former Prime Minister, Lady Thatcher, but there it is. People move around the political spectrum all the time these days.
The main issue I take from what the hon. Member for Dudley North said is that there remains an element of discretion. Up to a point, Lord Copper, is the answer to that. Why have a presumption at all? We are coming on to that debate, so perhaps we went off at a slight tangent a few moments ago, but it is a relevant point to make. If Government Members wish to emphasise the discretion that is available to judges, why are they supporting a clause that inserts conditions?
Andy Slaughter
I beg to move amendment 13, in clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court considers that it is in the interest of justice to do so.”
This amendment would limit the remedies in subsection (1) to where the court considers it is in the interests of justice.
The Chair
With this it will be convenient to consider the following:
Amendment 14, in clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made in exceptional circumstances.”
This amendment would limit the use of the remedies in subsection (1) to exceptional circumstances.
Amendment 19, in clause 1, page 2, line 12, leave out “must” and insert “may”.
This amendment would make clear that the factors which the court considers are a matter for its judgment.
Amendment 32, in clause 1, page 2, line 13, at end insert—
“(aa) any detriment to the environment that would result from exercising or failing to exercise the power;
(ab) whether exercising or failing to exercise the power would constitute an effective remedy for the claimant;”
This amendment would require the court to have regard to any detriment to the environment that would result from the use of any suspended or prospective-only quashing order.
Amendment 36, in clause 1, page 2, leave out lines 14 and 15.
This amendment removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 33, in clause 1, page 2, leave out lines 14 to 22.
This amendment would reduce the requirement to consider non-legal factors in assessing the legality of decisions made.
Amendment 37, in clause 1, page 2, line 17, at end insert “including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.
This amendment would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.
Amendment 38, in clause 1, page 2, line 19, at end insert “which are to be identified by the defendant”.
This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 20, in clause 1, page 2, line 21, leave out “or proposed to be taken”.
This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.
Amendment 21, in clause 1, page 2, line 23, at end insert—
“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”
This amendment would clarify that the principle of good administration includes the need for administration to be lawful.
Amendment 23, in clause 1, page 2, leave out lines 24 to 32 and insert—
“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect.”
The amendment would remove the presumption and insert a precondition of the court’s exercise of the new remedial powers that they would offer an effective remedy to the claimant and any other person material affected by the impugned act.
Amendment 24, in clause 1, page 2, leave out lines 24 to 32 and insert—
“(9) If—
(a) the court is to make a quashing order, and
(b) it appears to the court that an order including provision under subsection (1) would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect, the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”
This amendment would require an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 22, in clause 1, page 2, leave out lines 24 to 32.
This amendment would remove the presumption in favour of using the new remedial powers in clause 1 and protect the discretion of the court.
Amendment 34, in clause 1, page 2, line 27, leave out “adequate redress” and insert “effective remedy to the claimant”.
This amendment would specify that the remedy should be for the claimant.
Amendment 27, in clause 1, page 2, line 29, leave out from “court” to end of line 30 and insert “may exercise the powers in that subsection accordingly”.
This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.
Andy Slaughter
The amendments in this group are principally in my name, although amendment 27 has been tabled by the SNP. They lead on quite conveniently from the short debate we have just had. It is a large group and I intend to speak to all the amendments, although for most of them I can be fairly brief. The common theme is that they propose ways of mitigating the introduction of prospective-only quashing orders, and in some cases suspended quashing orders, which, as I think we have made clear, we do not believe should be in the Bill at all. If they are to be in the Bill, we want to ensure that they are appropriately caveated and mitigated.
However, the crucial amendment here is amendment 22, which would remove the presumption from the Bill. Various Members have commented already on the presumption, which is perhaps the most controversial provision in part 1. I look forward to hearing the Minister justify it, particularly as the comments from the Government side so far have emphasised the retention of discretion. Sir Mark, we will seek a vote on amendment 22 if the Government persist in their support for the presumption.
By way of background—I will be a lot shorter than I was with the first group, because I have already laid out our concerns about clause 1—the rule of law requires compliance with the law, which means that everyone in the state, including public authorities, must act in accordance with the law. Judicial review, as we discussed this morning, is a fundamental way that these rule of law principles are vindicated. If the state does not comply with the law, an individual can bring a case to court in order to force the state to comply with the law.
The current law on remedies in judicial review also vindicates these principles. The default approach is that if the state does something unlawful, that decision will be quashed and have no legal effect. People generally do not bring cases to court for declarations; they bring cases to court to right a wrong, for a tangible result, and to actually achieve something. If I am injured in a car crash, I bring a case so that the court can rule that I am not at fault and so that the judge will award me damages.
As ever, there is nuance, and it is possible that there would be some instances where it would be appropriate for an unlawful action to retain its validity in some way. That was the outcome in the Gallagher case, where the Supreme Court held that ruling a statutory instrument void would introduce a discrepancy in the statutory scheme. This is very much the exception, but it is a course of action open to a judge in making a decision on the remedy to be awarded in judicial review.
However, proposed new section 29A(9) of Senior Courts Act 1981, as set out in clause 1, flips that principle on its head. The new default position will be that where a court issues a quashing order, it must suspend it, or limit any retrospective effect, unless there is a good reason not to. This undermines the rule of law, because judicial decisions are not effective or are less effective.
Consider a hypothetical case where a homelessness charity challenges a decision on the availability of social security benefits. The default remedy will be prospective- only, meaning that those who have missed out on their benefits in the past due to an unlawful action will not be entitled to back pay of those benefits. The remedy will help people in the future, but will do nothing to help those who have already suffered. What is the point in going to court in such a case, when the remedy granted will be of zero help to the applicant?
Proposed new section 29A(9) and (10) contains a presumption in favour of the use of suspended quashing orders and prospective-only quashing orders, which will favour the assurances of the Executive over other important considerations, particularly the impact on claimants and third parties of suspending a quashing order or making it prospective-only. Proposed subsection (9) sets up a presumption in favour of suspended quashing orders or prospective-only remedies. It says, in effect, that if the court considers that if such an order would offer “adequate redress”, it has to make one unless there is a good reason not to. It is a convoluted provision that introduces several steps and several terms that will lead to increased arguments and submissions at the remedy stage of litigation, increasing the costs and length of that litigation to the detriment of parties and the courts. It is also unclear how the subsection accords with the list of factors that courts are directed to consider in proposed subsection (8).
The Lord Chancellor has argued that while we quite rightly have judicial checks on the Executive, they have to be applied
“in a constructive and sensible way which allows the Government to deliver the projects that it’s tasked and mandated by Parliament to do”
and ensures that
“taxpayers’ money is not being squandered because projects are being harpooned.”
That argument is self-contradictory, because it states two quite different things—first, that there ought to be judicial checks on Government, and secondly, that the Government must be allowed to do things they have been mandated by Parliament to do. The whole point of judicial review is to prevent the state from acting unlawfully. The Lord Chancellor’s argument seems to be that even if the state is acting unlawfully, it ought to be allowed to continue to act unlawfully. A presumption in favour of suspending a quashing order is precisely that—permission for the state to continue to act unlawfully. In most cases, the “constructive and sensible” thing to do with an unlawful Government decision is to rule that it has no effect.
Professor Tom Hickman has called proposed new section 29A(9) “muddled” and suggested that it would be best to omit it altogether. Jonathan Morgan, who we heard from earlier this week, welcomed clause 1 generally but also argued that the proposed subsection is wrong. Liberty has said that it is
“entirely opposed to any presumption in favour of suspending a quashing order”.
The Public Law Project’s conclusion is that clause 1
“should be amended to remove the presumption and make clear that remedies should only be restricted in this way in exceptional circumstances.”
Creating a further barrier to getting an effective remedy is wrong in principle. There are already substantial hurdles to citizens bringing a successful judicial review: they have to show standing, get past the preliminary hearing, have the money to pay large legal fees, bring the case very promptly, and then show that a public authority has acted unlawfully. After all that, it is unfair to place another hurdle in their way. Proposed subsection (9) means that even after all those hurdles have been cleared and the court has ruled that the public authority is in the wrong, the presumption is that the effect of the quashing order will be limited. It undermines the principle of legality if the default is that an unlawful action is still valid and that a quashing order ought normally to be suspended or have only prospective effect. The presumption in the subsection ought to be reversed so that it is in favour of quashing orders taking effect immediately.
In its report, the independent review of administrative law did recommend legislating for suspended quashing orders, but it did not presume that such a remedy would be mandatory. The panel suggested that the courts are best placed to develop remedies that work in practice, and that rather than giving judges increased flexibility, imposing this presumption would limit their ability to provide redress to claimants.
Instead of preserving judicial discretion over whether to suspend a quashing order or remove or limit its retrospective effect, proposed new subsection 29A(9) and (10) in clause 1 introduces a statutory presumption in favour of doing so if it would “offer adequate redress”. We are strongly opposed to the statutory presumption. It is a long-established and fundamental principle in judicial review that remedies are discretionary. As no two judicial reviews are the same, it is necessary to ensure that there is a fair outcome that fits the circumstances of the case at hand. The Government’s response to their consultation on their judicial review proposals showed that the overwhelming majority of responses that they received were clearly against the introduction of statutory presumption and in favour of preserving judicial discretion. We are concerned that the Government have chosen to disregard the expertise and opinions of their stakeholders and to push forward with a statutory presumption that has little or no support, particularly as there is no evidence to suggest that without the presumption, the courts would not use the additional remedial tools at their disposal where appropriate.
Sir John Hayes
I have no desire to prolong the hon. Gentleman’s oration, but he says that the statutory presumption has little or no support. The witnesses that we heard from when we first met as a Committee said the exact opposite, however. They said that the reform was necessary because of the change that has occurred to judicial review over time. As I said earlier, this Bill is an attempt to affirm the sovereignty of judicial review by reaffirming its proper purpose. Does the hon. Gentleman discount the views of those expert witnesses when he says that almost no one supports it?
Andy Slaughter
I take the right hon. Gentleman’s point very seriously. We touched on that point this morning, although I know he was not in Committee. I gave a little thumbnail of some of the witnesses and indicated that their views were—as one might expect from senior academics and practitioners—free from bias and prejudice, and what they said was quite interesting and variegated.
If the right hon. Gentleman were talking about suspended quashing orders, I would have some sympathy with him, because I think the balance was probably in favour of those, with some reservations. Even on prospective-only orders, there was a degree of support, and that may be what he is referring to. I thought that there was very limited support for the statutory presumption, however. Some people think it is okay and some wish to go further than what is in the Bill, but I would say that the balance of opinion, in the responses to the previous consultation—let us remember that in addition to IRAL, the Government have had their own consultation—and in the written evidence submitted to the Bill Committee, has been overwhelmingly against the presumption, for some of the reasons that I am giving.
We do not believe that a statutory presumption is in keeping with the Government’s own stated commitment to pursuing incremental change. It is not yet clear in what cases a suspended or prospective-only quashing order would be appropriate, and there remains some apprehension about the possible consequences of those orders. They should, therefore, be used with caution. A statutory presumption could force the court into using these provisions in circumstances in which they would not be appropriate.
Any legislation will lead to debates in court as to the meaning of terms, but it is not justifiable unnecessarily to introduce new processes and concepts for the courts to grapple with. The Government state that proposed new section 29A(9) of the Senior Courts Act 1981 can
“direct and guide the court’s reasoning to certain outcomes in certain circumstances”,
notably, whether remedies under new section 29A(1) can provide adequate redress. However, the courts already seek to craft the most appropriate remedy for the circumstances that are before them. A court will issue a prospective or suspended order if it is the most appropriate remedy. There is no need for a convoluted legislative provision telling the courts to do so.
The presumption also conflicts with the Government’s stated aim of increasing remedial discretion, as it requires particular remedies to be used in certain circumstances. We oppose prospective-only orders for the reasons set out in the earlier debate, but if they are to be used, it should be at the court’s discretion. Suspended orders should also be used only in exceptional circumstances, as determined by the court.
It would greatly undermine the protective constitutional role of judicial review and risk incoherence if proposed new section 29A(9) constrained the courts to issue a suspended order or a prospective-only order when a straightforward quashing order would be more suited to the circumstances of the case. I therefore submit that proposed new section 29A(9) can be removed. In applying the presumption, proposed new section 29A(10) requires the court to
“take into account, in particular”
anything under proposed new section 29A(8)(e). This directs the court to give special consideration to anything that the public body with responsibility for the impugned act, which may or may not be the defendant, has done or says it will do. However, there are difficulties with making a prospective-only quashing order on the basis of statements made, or even undertakings given by the defendant.
First, only the claimant would be able to enforce, if at all, the undertaking or statement, even though others will also be impacted by the defendant’s non-compliance. Further, claimants may not have the funds, ability or resources to bring the case back to court. Secondly, the recourse would only be against the defendant public body, not against other public bodies who have said they would act. Thirdly, in rejecting the introduction of a conditional quashing order, the Government recognised the practical difficulties with deciding whether a condition has been complied with—the same concerns apply equally to court orders made on the basis of public body assurances, including the potential for further protracted and costly litigation.
The courts do already take into account steps that the Executive or Parliament are intending to take or have taken, as well as now being required to by proposed new section 29A(8)(e), and generally accept that the defendant will comply with the court’s ruling on lawfulness. However, it should be for the courts to determine in the circumstances of the case what weight should be given to public body assurances, to ensure that the most appropriate remedy is made, considering the difficulties with relying on assurances. The courts should not be required to preference these assurances at the expense of other considerations, in particular the impact on the claimant and other third parties.
Suspended and prospective quashing orders both have a significant impact on the ability of individuals who have been subject to state wrongdoing to receive a full and timely remedy. Furthermore, they allow, to varying degrees, an act that has been found to be unlawful to remain valid and untouched. The courts must remain alert to the potential impact of these provisions in particular cases, and a statutory presumption would hinder their ability to do so. At a minimum, we believe this presumption must be removed.
Clause 1 stands to weaken the effectiveness of remedies available to the courts. The Government claim that they are giving extra tools to judges—as we heard earlier—but by imposing a presumption in favour of their use, they are in fact restraining the freedom of the courts to rule as they see fit. That is the key point that the Minister needs to answer. This presumption restricts the remedial discretion of the courts and should be removed.
As a less preferable alternative to removing the presumption altogether, our amendment 23 seeks to remove the presumption in proposed new section 29A(9) and insert a precondition of the court’s exercise of the new remedial powers, that they would offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 24—less preferable than both 22 and 23 —leaves the presumption and would require an effective remedy to the claimant and any other person materially affected by the impugned act. The Committee cannot say that we are not trying, at least, to meet the Government halfway on this matter. I have set out a smorgasbord of alternatives, from which the Government can select what they wish.
The phrase “adequate redress” in proposed new section 29A(9)(b) should be amended to “effective remedy” to increase certainty, and it should be made clear that the redress or remedy must be adequate both for the claimant and for any other person affected by the impugned act. The proposed new section 29A(10) should also be removed in its entirety.
With amendments 13 and 14, the power to suspend quashing orders and prospective-only quashing orders would be limited to exceptional circumstances where it is in the interests of justice through an amendment to proposed new section 29A(1). I do not think I need go into any detail on those amendments; they speak for themselves. Again, they are not ideal, but it would be good if in the Bill it was indicated that where these—in our view—undesirable remedies are to be available, that they should be limited to where there are acceptable circumstances or it is in the interests of justice.
Amendment 20 seeks to address the issues caused in proposed new section 29A(8)(e), which states that the court must consider
“any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act”.
I am particularly concerned with the requirement on the courts to consider any action proposed to be taken. This provides little or no legal basis to require the public body to act, especially if only said during submissions and not reflected in the court’s judgment. The reality of public body decision making, Executive action and the legislative timetable is that priorities and policy positions change, and resources and time may have to be diverted. In the meantime, the judicial review claimant and all others adversely impacted by the measure must wait—potentially continuing to be detrimentally impacted—with limited, if any, legal recourse against the defendant or other relevant public body. There is too much uncertainty in the actions a public body proposes to take to form a legal basis for suspending a quashing order or making it prospective-only. Any intentions indicated to the court could change in the light of subsequent developments, leaving those affected potentially without any recourse. The words
"or proposed to be taken”
should be removed from proposed new section 29A(8)(e) so that it refers only to undertakings.
Amendment 36 provides clarity that the principle of good administration includes the need for administration to be lawful. This requires clarification. There are five main reasons why greater recourse to these weakened remedies, and especially any presumption in their favour, should be resisted. I will conclude my comments when I have gone through those five reasons.
First, these remedies place victims of unlawful actions in an unfair position; remedies which are prospective-only may leave individuals without redress at all. Secondly, they insulate Government from scrutiny and make it more difficult for decision makers to be held to account. Prospective-only remedies would be particularly likely to have a chilling effect on individual claimants bringing judicial review claims. Why, as we have already said, would someone spend money, time and effort to challenge an unlawful decision made against them if that decision cannot be rectified in their specific case? The proposed changes risk creating a situation where unlawful actions go unopposed and individuals’ ability to defend their rights against an overbearing state is undermined.
Thirdly, the remedies make it more—rather than less—likely that judges will be forced to enter the political realm. The effect of a suspended or prospective-only quashing order may be to grant legal validity to an action that, on its face, contravenes an Act of Parliament. It creates a judicial fix for an unlawful Government act, when such an action would ordinarily be the exclusive domain of Parliament. Further, when deciding whether to issue a weakened remedy, judges must consider the likely future actions of public bodies, something that judges have previously described as a job they are ill-equipped to undertake. That would be an especially regrettable and ironic consequence when the Government’s avowed aim is to prevent judges stepping into the political realm.
Fourthly, and as senior judges have acknowledged, one of the benefits of the current system of quashing orders is its simplicity. While being presented as a measure that promotes certainty, the new remedies in fact generate significant uncertainty about how they will operate and are likely to result in expensive post-judgment satellite litigation. That uncertainty, together with an increase in costs, will create yet another practical barrier to individual claimants bringing judicial review claims in the first place. Fifthly, proposed new section 29A(5) undermines a person’s right to bring a collateral challenge following an illegal public act. That is a point we will deal with more fully when we come to the third group of amendments.
Anne McLaughlin
Suspended quashing orders and prospective-only remedies will not apply in Scottish courts, but because they can and will affect UK-wide laws, the people of Scotland, who remain subject to UK-wide laws until they are independent—I have just disenfranchised myself from everybody on this side, apart from my hon. Friend the Member for Lanark and Hamilton East—are also impacted.
Our primary objection is that there is a statutory presumption written into the provisions. In other words, the default position for judges is expected to be that quashing orders are suspended and prospective-only. Government and Opposition Members, both today and in previous debates, have suggested that the presumption does not curtail a judge’s discretion to use the full suite of available remedies. They are wrong—[Interruption.]
The Chair
Order. Can I ask those who are playing with electronic devices to turn the sound down or off? Sorry, Anne—go on.
Anne McLaughlin
Thank you, Sir Mark.
On the power to issue a suspended quashing order with the option of prospective-only effect, the Bill says:
“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”
Our amendment 27 seeks to remove the word “must” and replace it with “may”. Given that Government Members are claiming that that is what they really mean, they ought not to have any problem supporting the amendment.
The word “must” clearly directs a judge’s reasoning and interferes with judicial independence and discretion, and the Government claim they do not want to do that. It is not just members of this Committee who have said so. The Secretary of State for Justice, the Lord Chancellor himself, said on Second Reading that the Bill
“gives judges greater flexibility in judicial review”.—[Official Report, 26 October 2021; Vol. 702, c. 195.]
As the Public Law Project pointed out, however, the inclusion of the statutory presumption contradicts that stated aim by tying the hands of judges so that they are required to use the new remedies in certain circumstances. If the powers are to be created, they ought to be the exception and not the norm, as the report of the independent review of administrative law suggests and as a number of Government Back Benchers, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill) and the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) also suggested.
The PLP helpfully goes on to say why a statutory presumption is harmful, which is that it sets modified quashing orders as the starting point in all cases, which the judge then deviates from only if the court sees a good reason to do so. Even those who support that statutory presumption can list only a small number of cases in which such remedies might be appropriate. From what hon. Members have said this morning, however, they do not support the statutory presumption aspect, so they will have no difficulty in supporting amendment 27.
I do not know whether this is the appropriate time to say so, Sir Mark, but as the hon. Member for Hammersmith is pressing amendment 22 to a vote, I will be happy to withdraw my amendment and to support his instead.
James Cartlidge
It is a pleasure to follow the hon. Lady. I would not characterise the comments of my hon. Friends about judicial discretion as implying that they would therefore willingly see the presumption removed. I will not quite call it cheeky, but that is certainly a presumption of its own about our position on the matter and not entirely correct, as I hope we will discover should the amendment be pushed to a vote—it sounds as if it will be.
In her intervention on the speech by my hon. Friend the Member for Dudley North, and in her speech now, the hon. Member for Glasgow North East, although she clearly has a strong view on presumption, did not deny the point, which is significant in terms of the previous group of amendments, that under the Scotland Act 1998 the Scottish Government—and, under other legislation, the other devolved Administrations too—have a power to make prospective-only orders. That is important. I am not suggesting that the power is used frequently, but it exists, although admittedly without the presumption.
Anne McLaughlin
But the Minister’s last point was that it is without presumption, and only in certain circumstances. As I understand it, in certain circumstances in England and Wales those orders can be used anyway. Basically, we are trying to turn things on their head so that judges are told, “This is what you will do, unless you can convince us otherwise.” That is not comparable with the Scottish system at all.
James Cartlidge
I entirely accept that the hon. Lady disagrees on the point of presumption, which I will come to in a moment, but in terms of the first group of amendments, which were primarily about the important changes to quashing orders—that is, the prospective-only remedy—all of this underlines the fact that, as my hon. Friend the Member for Dudley North said, these things far from unprecedented in our constitution.
Before I turn to the specific amendments, one of the most interesting points made by the hon. Member for Hammersmith—which he made early on—was that people who bring a judicial review do not do so because they want a declaration; they want a quashing order. They want, as it were, the full bifta, rather than a relatively toothless outcome. On that point, an extremely important case to draw on is Hurley and Moore v. the Secretary of State for Business, Energy and Industrial Strategy. That was an important decision regarding university tuition fees. Lord Justice Elias, one of the key judges, basically made a declaration against a quashing order—I quote the reasons why—saying that it
“would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.”
In my view therefore—this is important—the very presence of the new remedies, which as Conservative colleagues have said give more flexibility, makes it more likely and, dare I say, easier for a judge to issue a quashing order, rather than being restrained to the extent that the judge would otherwise simply issue a declaration. That is from the perspective of the best interests and the desire of the claimant to get their pound of flesh—their remedy—and to see their justice served. It is important to remember that point.
I turn now to the many amendments in the group. They deal primarily with the presumption, which the hon. Member for Glasgow North East was just talking about, in proposed new section 29A(9) of the Senior Courts Act 1981, and the factors that the courts must consider when deciding whether to use the new modifications—the quashing orders—at subsection (8).
There are two general points to stress. First, the Government’s intention in including both the presumption and the list of factors that the courts must consider is to assist in developing the jurisprudence around the new remedies. As the courts begin to consider cases where such remedies might be used, they will build up a body of case law about when the presumption is or is not rebutted and when the relevant factors apply. That will increase legal certainty, which is to everybody’s benefit. Secondly, I remind the Committee that we consulted both on the presumption and on which factors might be relevant in applying the new remedies. We reflected on the responses to that consultation. Respondents’ suggestions were helpful, particularly in allowing us to come up with the list of factors at subsection (8).
I turn now to amendments 22 and 27, tabled respectively by the hon. Members for Hammersmith and for Glasgow North East, which seek to remove the presumption at subsection (9). The amendments are based on a flawed assumption that the presumption is somehow intended to force the courts into using the new remedies where they are not appropriate. That is not the case. The Bill encourages the courts to use the remedies only where appropriate. It will be entirely up to judges to decide whether they offer adequate redress. If judges consider that they do not or that there is some other good reason not to use them, the court can rebut the presumption.
Anne McLaughlin
While the subsection says that
“the court must exercise the powers”
and amendment 27 asks for it to say that the court “may” exercise them, the Minister’s interpretation is that courts may exercise them. Does he understand why we want to amend the subsection? What he describes is what we are trying to amend it to.
James Cartlidge
That is a fair point. The words “must” and “may” often have significant meaning in Bills. The Bill’s wording does not seek to force a court’s hand but provides a clear message that Parliament expects to see the new powers used where appropriate. With respect, I think that clarity comes with the Bill’s wording.
However, the presumption also plays another important role in ensuring that the principles and practice around the new remedies are developed quickly. Jurisprudence can be a slow-moving beast, and the presumption will expedite the process and bring greater legal certainty. While removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively, we continue to believe that there is merit in providing this indication to the courts that they should properly consider the use of the new remedial options available to them, and to develop the case law as to their usage more quickly.
I turn now to amendments 24 and 34, the central purpose of which is to change the wording of the test that the court must apply when considering the presumption. The hon. Member for Hammersmith proposes “effective remedy” as an alternative to “adequate redress”, which he argues would be a more stringent test. I fear that we are getting pretty close to what we call semantic arguments. The Government’s intention is that the remedies are used only in circumstances where it is appropriate. We are not seeking to deny or restrict justice to claimants. I am not, therefore, persuaded that his wording would result in a higher test or make any material difference to the clause.
Amendment 24 also seeks to ensure that, in considering the “effective remedy”, the court considers the interests of not just the claimant but other affected persons. The way in which our “adequate redress” test is framed in no way prevents the court from considering the impact on persons other than the claimant. Indeed, when it is considered in conjunction with paragraph (c) of the list of factors at subsection (8), I contend that that is already captured by the clause.
Turning to amendment 23, which would remove the presumption contained at subsection (9) and replace it with a precondition—I think we are moving into smorgasbord territory—I submit that that would constitute a significantly more restrictive approach, which would limit the court’s flexibility to adapt the remedies to the situation before it. The amendment is redundant since the current presumption and list of factors provide an appropriate guide to the use of the new remedies. I do not see how it would make the situation clearer than the current drafting.
Let me turn now to a series of amendments that relate specifically to the list of factors at subsection (8), which is crucial to the operation of the new remedies. Amendments 13 and 21 seem to suggest that we need to tell the courts that the remedies that they use in judicial review cases should be used in the interest of justice and add a vague direction that
“good administration is administration which is lawful.”
The problem here, which confuses me, is that the implication of what the hon. Member for Hammersmith is suggesting appears to be that the courts would not otherwise act in the interests of justice or consider that lawful administration is a good thing. I do not think he necessarily trusts the courts to understand those rather fundamental concepts.
I argue that these amendments would add nothing of value to the Bill, as judges will retain the ability to use remedies in a way that they feel offers adequate redress for the claim brought. Our new remedies do not seek to change that. We are also struggling to find a clear justification for why a theoretical inquiry into the relationship between “goodness” and “lawfulness” needs to be made. Those concepts are very open to interpretation, and the amendment gives no indication as to their meaning in this context, while, in contrast, the current drafting makes the meaning clear and focused on practical issues.
Andy Slaughter
I am grateful to the hon. Member for Glasgow North East for her comments, and for withdrawing her amendment, which was essentially the same—or would achieve the same effect—as our amendment 22. We will, therefore, push that to a vote in due course.
As far as the Minister’s comments are concerned, I mentioned the administrative chaos point already; I will return to that briefly on clause stand part because, as I think some of his comments conceded, there are ways around this at the moment. My view is that if the courts can find a route to resolve difficulties, they should be left to do that themselves, and there is no need for us to interfere, but that is specifically around suspended orders—I will come back to that.
The Minister calls it semantics or language; well, I agree with him, but I just think our language is better. By that, I mean it is more precise and more familiar: concepts such as “exceptional circumstances”, “the interest of justice” or “effective remedy” more correctly sum up what we are intending to do here, and will be more familiar to the court in applying its jurisdiction. That is also why we wanted to say that good administration must be lawful.
The central point, which the Minister just has not persuaded me on—that is why I will persist with amendment 22—is, “Why is the presumption in there?” I am not at all persuaded by the non-exhaustive list of matters to which the court must have regard in subsection (8) either. They are not well drawn. Whatever the Minister says, he cannot get away from the fact that the presumption is a heavy-handed way to give a steer to the judiciary about how to operate, and it does not actually need to be there at all. He and the Government should trust the judiciary on the presumptions that it wishes to put forward.
There is a simple disagreement here, as sadly must happen sometimes between Government and Opposition. We cannot see any reason or logical argument in favour of the presumption, so we will exercise our right to press amendment 22 to a Division, although I beg to ask leave to withdraw amendment 13.
Amendment, by leave, withdrawn.
Andy Slaughter
I beg to move amendment 16, in clause 1, page 1, line 13, after “subsection (2)” insert “and to subsection (5A)”
See explanatory statement to Amendment 15.
The Chair
With this it will be convenient to discuss the following:
Amendment 17, in clause 1, page 1, line 16, after “subsection (2)” insert “and to subsection (5A)”
See explanatory statement to Amendment 15.
Amendment 18, in clause 1, page 2, line 1, at beginning insert “Subject to subsection (5A),”
See explanatory statement to Amendment 15.
Amendment 15, in clause 1, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsection (4) does not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsection (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss caused to the claimant by the impugned act before the date on which the quashing takes effect.”
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.
Andy Slaughter
This third and final group of amendments deals with one specific point that causes us concern, but it is a matter on which I can be relatively brief. I give notice that, subject to what the Minister has to say, we will seek a vote on amendment 15, which is the substantive amendment.
Proposed new section 29A(5) provides that
“Where…an impugned act is upheld”—
either until the quashing takes effect in respect of a suspended quashing order, or retrospectively in respect of an prospective-only quashing order—
“it is to be treated for all purposes as if its validity and force were, and always had been unimpaired by the relevant defect.”
We have significant concerns about the impact of that provision on collateral challenge, which this group of amendments would address.
Ordinarily, where a court has found a measure unlawful, even if it has not been quashed, it is possible to rely on that finding of unlawfulness in other proceedings—that is called “collateral challenge”. A person who has had to pay a tax under unlawful regulations, for example, would normally be able to bring a claim against HMRC to be refunded the money. However, new section 29A(5) requires an unlawful measure to be treated as lawful. That would preclude relying on the unlawfulness of a measure in other proceedings. That raises the possibility of people being charged with a criminal offence under unlawfully made delegated legislation, for example, but not being able to raise as a defence the fact that the legislation was subsequently found to be unlawful. As IRAL recognised, that position would leave the law in a “radically defective state”. A further subsection should be included to protect collateral challenge and third- party rights and defences where a remedy under new section 29A(1) is ordered.
New section 29A(5) states:
“Where...an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
Imagine if one of the statutory instruments issued by the Health Secretary during the coronavirus crisis, which created imprisonable criminal offences, were declared illegal by a court. If a court granted one of the new remedies, this subsection would make it as though that imprisonment were always legal. A person could therefore not argue as a defence in the magistrates or Crown court that the statutory instrument was invalid, because this subsection requires a judge to pretend that it was valid.
As IRAL noted in paragraph 3.66 of its report:
“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”
We agree and believe that collateral challenges should be expressly preserved in the Bill.
Alex Cunningham (Stockton North) (Lab)
Successive Tory-Lib Dem coalition and Tory Governments have made much of wanting to do away with red tape and simplify the law, but we have seen quite the opposite in practice. Does my hon. Friend agree that the legislation is yet another example of that? The sentences that he has just voiced are perhaps the best illustration of it. There will be all sorts of consequences to these particular measures. They are actually making things more complicated, less clear, and will provoke further litigation in time.
Andy Slaughter
My hon. Friend makes a very good point, and makes it better than I did. When one starts down this tinkering route—as the Government have in the Bill—and starts trying to nudge judges one way, putting in lists of qualifications and conditions with matters that have to be taken into account, altering the time period over which orders will take place, there are bound to be consequences. We have already said that there is likely to be uncertainty and satellite litigation, but genuine harm could also be caused in this way. I agree, as well, about red tape. It is all very well to try to cut through in that way—and it sounds very good when Ministers say it at the Dispatch Box—but unfortunately it leads to tragedies such as Grenfell Tower. Without the protection given by legislation and regulation on issues such as health and safety, the public are put at risk.
Even where a case has been brought and a decision has been found unlawful, the Bill stands to threaten the ability of people to bring collateral challenges. Proposed new section 29A(5) states that when a prospective-only or suspended quashing order has been made, the unlawful act is
“to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect”,
either retrospectively or until the quashing comes into effect. That situation, in which the court pretends that an unlawful decision was valid for a period of time, would appear to inhibit the ability of the person to rely on its unlawfulness in other proceedings. In other words, a person could be arrested under a regulation ruled unlawful by a court, but they would not be able to use that in their defence. The IRAL report quotes Professor David Feldman, whom we heard from, on the “intuitive revulsion” felt against that state of affairs, and concludes:
“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”
Clause 1 fails to protect the ability of individuals to rely on the finding of unlawfulness of a measure in other contexts—for example, as a defence to criminal proceedings. A further subsection should be included to protect collateral challenge and third-party rights and defences where a remedy under proposed new section 29A(1) is ordered. The possibility of collateral challenges should be expressly protected by proposed new section 29A(5A), which is what amendment 15 seeks to do by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.
That is really the only point I need to make on this group of amendments; of course, the other amendments are consequential on amendment 15. I hope that the Minister has taken the point. I ask him, in responding, to say first whether he supports amendment 15; if he cannot, as I say, we will press it to a vote. Would he then accept that this is an issue that needs to be dealt with? It clearly is. It may be unintended, but it is nevertheless a consequence of what the Government have set out to achieve in clause 1. Before the Bill comes back, it really needs to be dealt with.
James Cartlidge
The amendment aims to ensure that illegality of decisions can be relied upon when using the new remedies. I am also responding to amendments 16, 17 and 18, as they are dependent on the adding of proposed new section 29A(5A) and would require courts to consider proposed new section 29A(5A) when considering the effect on validity.
This new addition seeks to address concerns regarding claimants relying on the illegality of rulings as a defence in criminal proceedings or prejudicing their access to compensation. I would argue that we have already factored in such considerations and given the court ability to make special provision in such a case.
I draw the Committee’s attention to clause 1(1), in which proposed new section 29A(8) lists a number of factors that the court should have regard to when considering the use of our new measures. These importantly cover the interests or expectations of persons who would benefit from the quashing. One would presume that the ability to raise a defence would be one such benefit. Fundamentally, proposed new section 29A(8)(f) states,
“any other matter that appears to the court to be relevant”,
ensuring that such factors can be covered in any eventuality
I would argue that the factors listed, or any that the court feels adequate, would be used in good faith to ensure that the rule of law is upheld. Having considered those factors, the court can use its powers by virtue of subsection (2) to add any conditions to its order, for instance that the defendant does not take any further action to enforce the unlawful decision, such as bringing forward criminal proceedings. With the powers in the Bill the court can make clear, to its satisfaction, the precise effects of the order that it makes. That ensures that there is greater flexibility for the courts to arrive at a positive outcome for all those affected.
The list of factors and the ability to add conditions already allow what the hon. Member for Hammersmith is suggesting. Therefore, the amendment would make no useful change to the Bill. I urge him to withdraw it.
Andy Slaughter
The Minister has made my point for me in drawing attention to proposed new section 29A(8) in clause 1, which does not deal with this point other than under the non-exhaustive provision—
“any other matter that appears to the court to be relevant.”
It is too serious and too specific to be left to be casually dealt with in that way. Therefore, I wish to press amendment 15 to a vote.
I would ask the Minister to go back and look at this provision, and whether we need further, specific qualification of the kind that I have outlined that could be introduced at a later stage of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Andy Slaughter
We have had a good debate on the clause and I do not want to try the Committee’s patience by making a long speech. However, I would like to speak about suspended quashing orders, which we have danced around but not really touched on. I will explain why it is more appropriate to do so in this clause stand part debate. While I do not want to give away the denouement of my remarks too soon, our view is that although there are elements on both sides in relation to suspended quashing orders, we do not think, on balance, and certainly given our hostilities to the rest of clause 1, that there was enough in that to preserve clause 1. It is therefore our intention to vote against clause stand part. It depends on what the Minister has to say.
Proposed new section 29A(1)(a) of the Senior Courts Act 1981 allows for the use of suspended quashing orders, which would delay the imposition of a quashing order until a specified date. Up until the date was reached, the unlawful decision or policy would be treated as if it were valid. In the case of suspended orders, the public body would effectively be permitted to continue taking the same approach, despite that approach having been found to be unlawful, until a certain future point in time.
Fundamental to the principle of justice is that if an action of a public body is found to be unlawful, the victim can expect that unlawfulness to be rectified in a timely manner. As it is currently drafted, the clause fails to do that and dilutes the effectiveness of judicial review as a necessary means of holding public bodies accountable for their actions and as a means of offering fair redress to victims. Through the use of suspended quashing orders, judges will be capable of allowing the unlawful conduct that led to the legal case in the first place to remain in effect.
There are some exceptional cases where it may make sense to suspend the effect of a quashing order, when neither immediate quashing nor a declaration of unlawful action seems appropriate. For example, earlier the Minister mentioned the case of Hurley and Moore, where the court found the Secretary of State to have breached his public sector equality duties in making regulations that allowed tuition fees of up to £9,000 without properly assessing the policy’s potential discriminatory impact, but declined to quash the regulations due to the expected logistical difficulties. Instead, the court just issued a declaration.
The report of IRAL, which as we know was established to feed in to the Bill, says of that case:
“As a remedy, a suspended quashing order would have had more teeth. Such an order would have indicated that the Regulations would be quashed within a couple of months of the Court’s judgment unless the Secretary of State in the meantime properly performed his ‘public sector equality duties’ and considered in the light of that exercise whether the Regulations needed to be revised. Such a remedy would have ensured that the Secretary of State was not left free to disregard his statutory duties in regard to the Regulations.”
That may be a legitimate use of this power, but there are concerns that the possibility of making such an order was ruled out by the UK Supreme Court in Ahmed (No. 2), which was also mentioned earlier today. In that case, the court readily concluded that it has the discretion to suspend the effect of an order that it makes. The difficulty was that the court had already made a concrete decision, which held that the provisions were void, and did not want to undermine that decision.
The making of these orders remains at the courts’ discretion, although they have usually declined to do so, on the basis that doing so will often conflict with the fundamental principles of administrative law. It is recognised that there is debate on this point, so clarifying that suspended quashing orders are available is not an illegitimate aim.
Professor Jeff King agrees with the default approach that substantial orders for relief are much better than a declaration only, but he recognises that in exceptional cases it might be justifiable to depart from that presumption. That is why the pragmatic approach of the courts, occasionally issuing declarations in lieu of quashing orders with attendant justification, is defensible in principle as well as evident in practice. This is intuitively correct; if something is unlawful, it ought to be invalid. However, there may be some unusual cases in which a court may feel that a quashing order ought not to be made. The court has the discretion to do that.
For example, if a quashing order would cause what I think the Minister called administrative chaos in a range of public actions, or indeed with many individuals, the court may instead simply make a declaration. Alternatively, it may make a quashing order but suspend its operation, allowing the public authority some time to fix the legal problem itself. That means that the order is made, but there is a delay before it comes into effect. For example—I think we have used this example before—if a quashing order means that the rules on entitlement to social security benefit would be void, the court may suspend the quashing order to allow the Government time to make new rules that do not break the law.
Quashing orders give teeth to the court’s power to vindicate the rights of citizens. The ability to suspend a quashing order is helpful, as it makes a more nuanced remedy available. This avoids a binary choice between simply refusing a remedy and opposing a remedy, which causes administrative problems. Any uncertainties can be clarified by future decisions and not via primary legislation.
We have said already, and I will not go back over old ground, that in any event we are against any presumption in favour of a suspended quashing order. Proposed new section 29A(9) says that if it appears to the court that a suspended quashing order was a matter of substance, offering adequate redress in relation to the relevant case, then it must make one. Again, as has been said before, that was not recommended by IRAL. Imposing a presumption is not handing the judge additional tools, despite what Government Members say; it has the potential to hinder them from making use of the rest of their toolkit, even when it may be more appropriate to do so.
The imposition of the list of factors to which the court must have regard in proposed new section 29A(8) likewise serves to hinder flexibility and discretion still further. It should be noted, that while IRAL did not suggest a presumption, a list of factors also goes against the panel’s report, which said that
“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded”.
While undermining the “flexibility” that the Ministry of Justice has held up as a justification for this measure, suspended quashing orders also have the potential to introduce greater complexity and uncertainty into the currently simple system of quashing orders, and they are likely to give rise to satellite litigation. If the Government are determined to legislate to clarify that courts may suspend the effects of a quashing order, there must not be any presumption in favour of their use.
It is useful to illustrate examples of injustices that might not have been addressed if this clause were in place. In 2015, new Government guidance said that non-religious beliefs could be excluded from religious education curriculums in secondary schools. Three humanist families successfully challenged the guidance, in a groundbreaking judgment that established that non-religious beliefs such as humanism should be treated with equal respect in the curriculum. Had these reforms been in place then, it could have meant that the curriculum would not have had to change for the pupils affected, and justice would not have been served.
To give one other example, in the case of Save Our Surgery Ltd, the claimant was a group dedicated to preventing the closure of a clinic in Leeds that provided surgery to children with serious cardiac problems. The court held that the NHS committee’s decision to authorise the closure was unlawful due to procedural unfairness and omissions of key considerations in the consultation leading to the closure. The decision to close the clinic was quashed and paediatric heart surgeries resumed at the Leeds clinic in early 2013, shortly after the quashing order was granted. In the span of just 12 days in which the clinic was shut for surgeries due to the closure, it was reported by the BBC that 10 seriously ill children were forced to be transferred to other hospitals as far away as Newcastle and Birmingham, causing considerable difficulty to children and parents.
A suspended order could have been granted in this case for two reasons. First, at the time, the Health Secretary was already conducting a full merits test review into the faulty consultation process, which was considering the issues afresh and was set to make new recommendations regarding clinic closures. Given that that second review might still have recommended the closure of the clinic, a suspended order might have been thought appropriate at the time of the report. Secondly, the claimant was neither the actual Leeds clinic, nor a child denied surgery there, so a suspended order might have been adequate redress for the claimant. If a suspended order had been granted, the clinic closure would have been far longer than 12 days, putting more families through those difficulties.
In his speech on Second Reading, the Minister stated that the Bill supports
“very important principle of judicial review”,
namely
“better public administration of the law in the best interests of our constituents.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]
Judicial review is indeed extremely important in upholding high standards of public administration. It is an excellent incentive for public bodies to make decisions lawfully. As the Government submission to IRAL acknowledges, judicial review ensures that
“care is taken to ensure that decisions are robust”,
which “improves the decision”. If claimants are discouraged from bringing legitimate cases, there is a risk that standards of decision making may be lowered as a consequence of these changes.
When deciding whether to issue a weakened remedy or to grant an ordinary quashing order, judges would have to consider the likely future actions of a public body and would have to speculate on what administrative consequences the order would have. It is difficult to see how those judicial assessments are within the judicial expertise and experience. Indeed, some judges have previously described these assessments as a job they are ill-equipped to undertake. That would be especially regrettable and ironic, given the Government’s aim with this Bill.
Despite the Government’s reference to political cases, these remedies will harm the role of individual judges in judicial review, which is to uphold the will of Parliament, ensuring that the public bodies and Government Ministers exercise their powers within the four walls of the empowering statute. If the court issues a prospective-only quashing order, it is effectively saying, “Even though the public authority acted outside the powers granted it, we must pretend that its past action was lawful and we are only going to do something about it going forward.” The power to issue quashing orders that have only prospective effect, or that have limited retrospective effect, is a power that goes well beyond what IRAL recommended. The Government have yet meaningfully to justify with evidence why that additional and more radical proposal was needed.
Anne McLaughlin
As I said earlier, suspended quashing orders and prospective-only remedies do not apply in Scottish courts, and will not apply, but because these are UK-wide laws to which the people of Scotland are subject, they will be affected. Because Scottish courts can hear cases of UK-wide law, there will inevitably be an increase in the number choosing to be heard in the Scottish courts. After all, if someone knows that they are more likely to get some remedy for winning their case, why would they not choose the court system offering that? I am always happy to showcase all things Scottish, including our legal system, but who will pay for the increased capacity that the courts in Scotland will need if our system is to be clogged up with UK-wide hearings?
I have already explained why we are concerned about statutory presumption, and the hon. Member for Hammersmith has been very clear, so I will not take up time repeating him or myself. I do not imagine that any Bill Committee has a massive audience at home listening to us—although the hon. Member seemed to think differently earlier—but I think this is something that we should be encouraging people to tune into. After all, it is their lives we are talking about. While I do not think we can rival “Loose Women”, I do know that a number of people will be watching, and I think it is always worth explaining, in language that is as accessible as we can make it, what is going on.
So what do suspended quashing orders mean and why are we so opposed to them? On Second Reading, others and I raised the landmark judicial review that took place in 2017, which I think is worth talking about again. The Supreme Court found that Parliament could never have intended to limit people’s right to access justice by charging them fees to use the employment tribunal. It found in favour of the claimants and the quashing order had immediate effect. That meant that the fees were immediately abolished and the Government were required retrospectively to refund anyone who had paid in the past—and quite right. People had been charged up to £1,200 to access this form of justice. The Supreme Court ruled that they should not have been and they were rightly refunded.
However, if clause 1 had been in place, those extortionate fees could have stayed in place until a date determined by the court, so that everyone who required to ask for an employment tribunal between the date of the ruling and the date decided by the court—say, six months hence—would have to pay those unlawful fees of up to £1,200. The Government would then be given the time to rectify the unlawful policy, although this legislation allows the deadline to be varied if they do not rectify it on time; however, the rectification is the interesting bit.
What that means is that the Government would in effect be able to change the law so that the thing that had just been judged to be unlawful—in this case by the Supreme Court—was suddenly lawful. How can that possibly be? The effect in that case is that everyone who had paid the unlawful fee would be out of pocket, never to be refunded. Everyone who then paid in the intervening six months, or however long the Government were given to make the changes, would also be out pocket, never to be refunded. The Government would then change the law so that everyone in future is required to pay those fees of up to £1,200 or miss out on their access to justice, which is most likely the outcome for many people. We are talking about people losing their jobs, possibly wrongly, and being unlawfully dismissed, losing their entire income, and losing their right to access benefits—people who are sacked do not get support for the long term, because it is deemed to be their own fault.
Angela Crawley (Lanark and Hamilton East) (SNP)
My hon. Friend is making a compelling case. Thus far throughout our proceedings, on Tuesday and today, we have heard much discussion about “three bites of the cherry” and the notion that people are enjoying some advantageous aspect of the process. What we have not heard about is real cases where individuals have had the right to take cases to this stage and have them challenged, and where the Government have been held to account for their policy. The case that my hon. Friend has raised is a prime example, so does she agree taking away this mechanism will only further inhibit those who need that protection from the Government’s policies?
Anne McLaughlin
Yes, and that is what we are talking about—ordinary people who ordinarily do not have the access to justice that people with perhaps a little more money do. The tribunal system, which we will come on to later, is primarily about more vulnerable people, I would say. We have been talking about the people who had the landmark ruling, whom it affected. Even if they had managed finally to access benefits after losing their job unfairly and waiting to access justice, we all know that benefits are not enough to live on. They do not even cover things like the mortgage. Being wrongfully dismissed has a massive impact on someone’s life. Thank goodness for the Supreme Court judgment and thank goodness it happened in 2017 and not 2022, because if it happened in 2022, it would not make a blind bit of difference to anyone’s life, regardless of the outcome. Despite the effort and cost of going to court, a victim is left without an effective remedy, and the Government or public body, although acting unlawfully, faces no real consequences. We must not underestimate the chilling effect that this will have. For that daytime TV audience not used to legalese, what that means is that it will put people off attempting to access justice in the first place, because who would put themselves through all this for no tangible outcome?
The clause creates a perfect storm, with claimants having no incentive to challenge the Government or other public bodies, while said public bodies and Government proceed safe in the knowledge that they can do what they like. It is the risk of being held to account, the potential for challenge, that drives good decision and policy making. That point was made by a number of Opposition colleagues, at least, earlier today.
The measure also undermines judicial discretion. I know that we have already argued about this today, but it is imposing a statutory presumption in favour of suspended quashing orders. The Minister, in trying to reassure us that the statutory presumption does not mean, “This is what judges must do,” while ruling out removing the provision that says, “This is what judges must do,” did nothing to reassure us.
As Liberty points out in its evidence, IRAL considered prospective-only remedies and chose not to recommend them. It also chose not to recommend a statutory presumption for suspended quashing orders. What was the point of the independent review if the Government were simply going to ignore its conclusions? Therefore, we will vote against clause 1 standing part of the Bill.
James Cartlidge
It is an interesting thought that the way we are going to measure the success of our debates is whether we can compete with “Loose Women” on the viewing figures front. I think that that is highly unlikely, no matter how wonderful our language and discourse, but if there is someone who has watched all the way through—good luck to them—I think that it would be hard for them to refute the idea that we have had a pretty thorough debate on the key issues of clause 1, which is very important.
I will answer one point from the hon. Member for Glasgow North East, and this is really where the disagreement, to which the hon. Member for Hammersmith was referring, exists about the extent to which we put our faith in judicial discretion. Yes, there is the point about the presumption, but as I said, that is about jurisprudence, from our point of view. To go back to what the hon. Member for Glasgow North East said about, I think, the case to do with tribunal fees, she was arguing in effect, “They would not have been refunded if these remedies had existed, because they would have applied prospectively,” but that would be only if the judge chose to use that remedy. That point is absolutely fundamental. There would be absolutely no requirement for them to do so.
Anne McLaughlin
The Minister keeps saying that, and I keep saying this, so I will just keep saying it. The legislation says that judges must—they must—use those orders unless they can demonstrate otherwise. Why not just say that they “may” do this, and give them the opportunity to do it? Otherwise, they will have to dig deep and find lots of reasons that are acceptable to the Government for not using it.
James Cartlidge
I did address that point in some detail in my speech on the last batch of amendments but one, but I will repeat the point. We want there to be certainty that judges should be considering these remedies, but that does not mean they have to use them. Rather, they should state the reasons, whether they do or do not, so that we build up that log of jurisprudence, which, as I said, is very important in a common-law system.
There has been an in-depth debate on this clause, so I do not intend to go much further. I just want to make one more important point. As far as Government Members are concerned, these measures strengthen quashing orders by giving judges more flexibility and more tools in the judicial toolbox, and thereby strengthen judicial review. On the question of whether they should be used, of course that is a discretionary matter.
Perhaps the issue is this: we see the glass as half full. We do not feel that the new measures would be used detrimentally for our constituents. On the contrary, we think that they would be used in ways that support better public administration while still protecting the right of the claimant to obtain their justice, but ensuring that quashing orders do not have detrimental side effects when used. That is why I say that we are not forcing the judges’ hands.
Andy Slaughter
I have been very restrained with the Minister. He puts his case in a moderate and reasonable way: he believes that the clause will improve not just the armoury of the courts, but their performance. Why does he think that, in bringing judicial review claims, almost every claimant, organisation and practitioner does not think that, but thinks it will hamper them? Would it not be quite perverse if they were saying that without actually believing it from their own experience?
James Cartlidge
I am grateful to the hon. Gentleman. He obviously was not listening to the same experts as I was on Tuesday, when we heard some strong support for the remedies. There is recognition from the experts that the remedies give more flexibility. I have explained the sorts of circumstances in which they may be used, but if they are not appropriate, they will not be used. However, we would at least understand the reasoning. I do not want to put the horse before the Cart, which we are about to come to. [Laughter.] It is a very important matter on which I am sure colleagues want to speak.
Question put, That the clause stand part of the Bill.
Andy Slaughter
I beg to move amendment 43, in clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—
(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;
(b) that party was not of full age or capacity;
(c) the appeal before the First-tier Tribunal was not an in-country appeal;
(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;
(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or
(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”
This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.
The Chair
With this it will be convenient to discuss the following:
Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—
“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—
(i) bad faith, or
(ii) fundamental breach of the principles of natural justice.”
This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.
Amendment 44, in clause 2, page 4, line 8, at end insert—
“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;
an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;
a party is ‘not of full age or capacity’ if that party is—
(a) a child, or
(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)
an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;
‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;
‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;
‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”
This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.
Andy Slaughter
We are making splendid progress. I will again disappoint those who like cliff-hangers by saying right at the beginning what our attitude is towards clause 2. We find it concerning, both of itself and on its own merits. We believe that reversing decisions in Cart, and subjecting Cart judicial reviews to ouster, is wrong on its own merits. We also think, as the Government have perhaps unwisely said, that the clause may serve as a template for further or wider use of the ouster, possibly including in more controversial areas further on. We have an issue of practicality and an issue of principle, and are therefore very likely to vote against the clause.
This short group of amendments is an attempt to improve, ameliorate and mitigate clause 2. Frankly, we found it very difficult. There is very little to recommend in clause 2, unlike in clause 1, where we at least sought to find some imaginative ways of improving it. It is difficult; nevertheless, I will in a little while speak specifically to the amendments that we have tabled. However, I will start as I did with clause 1 by setting the background so that it is clear where we are coming from on the amendments and on the clause as a whole.
An ouster clause is a clause in legislation that seeks to oust the jurisdiction of the courts. The desired effect is that the subject matter of the ouster clause cannot be challenged in the courts. If given effect by the court, this would mean that the decision or action of an official in relation to that subject matter is final and cannot be challenged legally.
Rule of law objections to ouster clauses have often been made in Parliament. For example, in relation to the Justice and Security (Northern Ireland) Act 2007, the Constitution Committee of the House of Lords objected to an ouster clause, stating that
“the Rule of Law is diminished if an aggrieved citizen is barred from challenging an allegedly unlawful decision taken by a public authority.”
It is reasonable to say that ouster clauses are at odds with the rule of law. The orthodox view is therefore that courts will give effect to them only if the statutory language introducing them is absolutely clear. The courts have said:
“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”
In reality, courts are adept at reading even very clear words which purport to establish an ouster clause as not actually having the effect of creating an ouster clause.
The Tribunals, Courts and Enforcement Act 2007 contained an ouster clause relating to decisions of the upper tribunal. The upper tribunal deals with appeals from the administrative appeals chamber, the immigration and asylum chamber, the lands chamber and the tax and chancery chamber. In the case of Cart, the Court of Appeal stated that
“the supervisory jurisdiction of the High Court, well known to Parliament as one of the great historic artefacts of the common law, runs to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language.”
There is no such language in the 2007 Act. The Supreme Court confirmed this approach. This has led to what are known as Cart judicial reviews, whereby a decision of the upper tribunal can be judicially reviewed.
There has been an on-going debate about how effective Cart judicial reviews are in catching errors of law made by the upper tribunal. The Independent Review of Administrative Law panel found that there were errors of law in only 0.22% of cases. The Public Law Project has questioned the empirical evidence for that and suggested that Cart judicial reviews are much more effective, with an actual figure between 2.3% and 9.2%. It is difficult to know what the true figure is, but it is conceded that the 0.22% figure is a significant underestimate. I will say more about this later. However, I felt that that there was a degree of consensus around some of the evidence we heard on Tuesday that the figure was certainly about 3%, and possibly around 5%. I will come on to what I think the significance of figures of that kind may be.
Tom Hunt (Ipswich) (Con)
Whether it is 0.2%, 3% or 5%, we are still talking about a figure at least 10 times lower than the average success for other types of judicial review, which is 40% or 50%. Surely that is a significant point to consider?
Andy Slaughter
I thank the hon. Gentleman for his point. We did hear a number of different figures. I am now stretching my memory to recall exactly who said what. Was it Professor Feldman who said 30% to 50%, and Dr Morgan who posited 5%? I cannot quite remember. However, yes, there are different success rates for different types of judicial review. The point is that, even if the figure is small, Cart judicial reviews are important—I will come on to that more fully. However, if it is 5%, that is not a negligible figure. One in 20 is still a lot of cases. I am going to give some case examples to show the type of case that we are dealing with here. Perhaps the hon. Gentleman will be persuaded that there are sufficient by way of number and variety or that the compelling facts of the cases are such that he would want to retain Cart reviews. We will see.
The Government said they would introduce legislation to reverse the law on Cart judicial reviews. They said that they would seek to widen ouster clauses to other areas, although accepting that they would be rare. They also said they would legislate for modifying quashing orders so that they could be suspended or have limited effect. The proposals announced by the Government appear to be more radical than those envisaged by the independent panel—I think that is true.
The Lord Chancellor recently suggested that there may be more reforms to come on judicial review. His view was that judicial review meant that public money was being squandered, as courts are overturning Government decisions. However, as the commentator Joshua Rozenberg recently put it, commenting on a decision of the Transport Secretary on the Stonehenge case, which I have already referred to today, if the Transport Secretary
“had got it right the first time, taxpayers’ money would not have been squandered.”
Rather than a Minister complaining about a court rectifying unlawful decisions, it would be better to make lawful decisions in the first place.
The clause would take away proper, full judicial oversight in a specific area of public decision making, leaving vulnerable individuals affected by decisions more at risk of injustice. It does so in a way that the Government explicitly state is a test run for other ouster clauses—trying to get rid of judicial oversight in other policy areas. We have been left with a Bill that is bad for claimants bringing cases, disincentivises others who have been wronged bringing their own, fetters discretion while dragging courts into matters of policy, and jettisons a vital safeguard for very little gain. There is nothing in this part of the Bill to help improve the quality of decision making. It simply risks making it worse. The judicial review aspects make up only a small amount of the Bill, but there is very little that we think can be salvaged.
Clause 2 introduces the ouster in respect of decisions of the upper tribunal. That means that some decisions will now be final and cannot be appealed to another court, because the clause would abolish the Cart judicial review. The upper tribunal deals with a host of appeals from various tribunals. The context is the importance of scrutiny and accountability mechanisms to hold public authorities to account.
Cart judicial review is used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights.
Antony Higginbotham (Burnley) (Con)
The hon. Member is making some interesting points about why we need to keep the system as it is, which allows for three bites of the cherry. Will he set out whether he thinks that process should extend to lots of other areas, and has he considered how much that would cost and how much judicial time would be taken up?
Andy Slaughter
I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.
Andy Slaughter
Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.
Antony Higginbotham
I do not think anyone is saying that it does not work. What we are saying is that it is a different process, and we are talking about whether it is efficient and fair for this one cohort of cases to be treated in a very different way. It is not about whether it works or does not work; it is about whether it is the right process and whether we should operate on a consistent basis.
Andy Slaughter
I have said, and I am coming back to the issue, that it is right and just to maintain Cart judicial reviews, but I will come on to the issue of cost shortly and whether that is appropriate. I hope that will answer the hon. Gentleman’s question.
Alex Cunningham
I am glad my hon. Friend is going to get on to costs. In the evidence session earlier this week, the Minister spoke about having the privilege of attending the Lord Chancellor’s swearing in. He said:
“One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time”.––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 30, Q32.]
Should cash get in the way of justice, as it is here?
Andy Slaughter
Everything has a cost—it is a question of whether it is a reasonable cost. Unfortunately, we have seen the justice system of this country and every aspect of the budget of the Ministry of Justice cut more than any other Department in the last few years. Even the much heralded uplifts over the next few years will take us not much further than restoring half of the money that has been cut. I think it sits rather ill in the Government’s mouth to start talking about money, having done so much damage.
There is not an infinite amount of money, although the Government seem to discover various money trees around the place, and it is a legitimate factor to consider. What I am going on to look at is whether, in the case of Cart, the cost is a justifiable cost, either because of the remedy it provides or per se.
As I have said, Cart judicial reviews are used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights. It is usually used in asylum and human rights cases, in which the stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.
In most cases, it is true that these are asylum and human rights cases, but not all of them are. One of our witnesses—Dr Morgan, perhaps—mentioned that Cart itself was not an asylum and immigration case. It would be wrong to categorise Cart judicial reviews as being for asylum and human rights cases. There are others as well.
Clause 2 would severely restrict Cart judicial review. The Government have not made the case for removing this vital safeguard against serious errors in the tribunal system in cases of the utmost importance. With this clause, the Bill would set a precedent for removing certain cases or areas from the scope of judicial review.
The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and the separation of powers. There is simply no evidence that judicial review is currently so prejudicial to good administration that it needs to be significantly restricted, and there was no conclusion to that effect in the Government-sponsored independent review. That is wholly unsurprising. That Governments find judicial review at times to be inconvenient is no justification for attempting to avoid judicial scrutiny, in this or other areas. It is particularly concerning in this specific instance.
The Bill will largely extinguish the power of the High Court to oversee decisions of the upper tribunal relating to permission to appeal first-tier tribunal decisions. This will affect all four chambers of the upper tribunal, and individuals will no longer be able to apply to the High Court. The removal of this safeguard is likely to impact some of the most vulnerable people in the system, taking away their protection from errors made by public authorities. These include refusals of asylum and, where human rights are engaged, decisions to deport someone, including where that person may have lived in this country for much, most or even all of their life.
It is important to understand that removing the normal supervision of the High Court in this area is particularly problematic given the existing constraints in the asylum and immigration system for the tribunal, and in the context of the Nationality and Borders Bill, which threatens to exacerbate those constraints. The danger is that those passing through this system will be at heightened risk of failing to receive a fair and full hearing of any appeal whatsoever. If so, the administrative decision to refuse asylum to, or deport, a person will go without any effective or independent oversight. That will be exponentially harmful, because it will tend to insulate the original administrative decision making from the degree of scrutiny that is necessary to have any prospect of improving and maintaining its quality.
The purpose of judicial review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve that, such as by ensuring access to high-quality legal representation from an early stage in proceedings, or by improving guidance. Instead of reducing need, the Bill simply removes access to Cart judicial review, which allows individuals to challenge decisions to refuse them a right of appeal where those decisions are made unlawfully. Doing so narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart judicial review is a vital remedy of last resort for people subject to unlawful decision making, and should be defended.
Turning to the statistics and costings, unlike prospective-only remedies or a presumption in favour of suspended quashing orders, it is right to say that reversing Cart was a recommendation of the independent review of administrative law. The counter-argument in favour of clause 2 is primarily said to be the cost of Cart cases and the use of valuable judicial resources. The costs of Cart JRs are described as a “disproportionate and unjustified burden” on the system. The Bill’s impact assessment estimates that between 173 and 180 High Court and upper tribunal sitting days will be freed up each year through clause 2, representing savings of between £364,000 and £402,000 a year. That figure is not high—it is less than some Members can pick up in their alternative jobs over a period of a few years—especially when considering the important role of Cart JRs in preventing serious injustice and ensuring that key decisions of the upper tribunal are not insulated from challenge.
A High Court judge can consider at least five applications for Cart judicial review in a single sitting day, an assumption that may be overstating the time taken to consider a single case. That figure of £364,000 to £402,000 is also inflated, because it considers the costs of the upper tribunal rehearing the case. That will occur because an unlawful upper tribunal permission decision has been identified by the High Court, so including those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position cannot be acceptable.
Further, the average number of hours per Cart judicial review in the High Court that the impact assessment provides is 1.3 hours—again, that means up to five Cart JRs per day, which could easily be overestimating the time it takes a High Court judge to consider a single Cart judicial review case. That is especially true because there is a specific streamlined procedure for Cart JRs, which includes that if permission for the Cart JR is granted, unless a substantive hearing on that judicial review is requested, the court will automatically quash the upper tribunal’s refusal of permission. Moreover, that figure is inflated because it includes the cost of the upper tribunal rehearing the appeal in a successful case. That would constitute a cost saving resulting from allowing unlawful decisions to stand: those costs would only be saved because the upper tribunal’s unlawful refusal of permission to appeal was immunised from challenge.
There is already a high threshold for the use of Cart judicial reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart judicial review of a decision must be submitted within 16 days of the initial decision having been sent, instead of the usual three months available in other types of judicial review. Unlike other judicial reviews, there is no right to an oral hearing: Cart judicial reviews are dealt with by paper application only, thus requiring minimal judicial resources.
As we have already touched on, IRAL’s recommendation to reverse Cart judicial review was based on the 0.22% figure, but I think it is now generally accepted that that figure was seriously flawed. The criticism of that figure attracted the support of the Office for Statistics Regulation, and the Government have now accepted it: their own analysis suggests that at least 3.4% of cases are successful, a figure 15 times higher than IRAL originally estimated. However, that figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JR are considerably higher. I know that there are a number of figures flying around, but I think quite a persuasive case was made for the figure of around 5%. I think the variation stems from IRAL’s misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities that mean that they are rarely accurately reported.
Further, the Government’s definition of success does not reflect the purpose of Cart JRs and is unduly narrow. The analysis in the consultation response and impact assessment adopts an unduly narrow definition of success, which artificially deflates the success rate and artificially increases the projected cost savings. The Government define success as not only success in a judicial review, but also a finding in favour of the claimant at a subsequent substantive appeal in the upper tribunal. That is because the Ministry of Justice assumes that a Cart JR is successful if not only the upper tribunal’s refusal of permission to appeal is overturned, but permission to appeal is granted and the appeal against the first-tier tribunal’s decision is allowed.
That excludes all the cases in which Cart judicial review played a vital role in correcting an error of law in the upper tribunal’s refusal of permission to appeal, but the subsequent appeal was dismissed. That is not the normal approach to defining success in judicial review. It ignores the benefit that flows from a case that meets the Cart criteria being heard in the upper tribunal, allowing that more senior tribunal to consider important points of principle or practice and opening up the possibility of appeal to the Court of Appeal, thus preventing the upper tribunal from being insulated from the general courts system.
A Cart judicial review should be regarded as successful if it results in the refusal of permission to appeal being overturned. If we adopt that definition, the success rate is more like 5.5% or 6%, which is some 25 times higher than the IRAL panel thought and means that more than one in 20 cases are successful. That might be regarded as a reasonable and appropriate success rate for challenges to decisions by a senior tribunal, but that view is surely fortified by the nature of the issues at stake.
In any full assessment of the proportionate use of judicial resource, account needs to be taken of the weight of the interests. In the administrative appeals chamber, many appeals concern access to benefits that are designed to prevent destitution and homelessness, or to meet the additional living costs of disabled people. In the immigration and asylum chamber, almost all cases involve asylum and human rights appeals. The potential injustices at stake concern the most fundamental rights and may literally be a matter of life and death. The cases that succeed in a Cart judicial review will also, by definition, involve important points of law or practice, which would otherwise not be considered, or compelling reasons such as the complete breakdown of fair procedure.
Cart JRs have several purposes, including the identification of errors of law in upper tribunal permission decisions where important issues of principle or practice are raised. That will be achieved if the upper tribunal’s refusal of permission to appeal is quashed. The impact assessment states that of a total of 92 cases, out of 1,249 applications, 48 were remitted to the upper tribunal for permission to appeal decisions. That is in the context of immigration Cart JRs for 2018-19, minus cases pending an appeal decision in the upper tribunal. Therefore, based on those figures and a more accurate definition of success, which still does not account for settlement, the success rate is 7.37%—more than double the 3.4% that the Government now rely on, and more than 30 times the original figure cited by IRAL. In addition, there is required to be an arguable case that has a reasonable prospect of success.
In short, the streamlined procedure for Cart judicial reviews, together with the high test for permission in Cart cases, provides a proportionate means of achieving the aim, which the Government commend, of ensuring some overall judicial supervision of the decisions of the upper tribunal in order to guard against the risk that errors of law of real significance slip through the system. An entirely appropriate and proportionate amount of judicial resource is used in identifying and correcting errors of law that would have potentially catastrophic consequences for the individuals concerned.
As I have said, it is not just the number of cases but their nature that is concerning. Many relate to immigration and asylum. Many of the remainder concern access to benefits for the disabled and others facing destitution. The result of these appeals may decide whether someone has the means to live and to be housed, or whether they may be deported, separated from their family and face potential mistreatment, and the Government are not unaware of that.
Alex Cunningham
As we are looking at this whole issue of scrutiny, which is so important, I cannot quite understand why the Government or anybody else would not want greater scrutiny of what they do on a day-to-day basis. Does my hon. Friend understand my feelings on that?
Andy Slaughter
I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.
In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.
I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.
In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.
Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.
Sir John Hayes
The hon. Gentleman must know that only about 3% of these kinds of judicial review succeed, and that the huge number of them, 750 or so a year, are taking up enormous amounts of time. It would be good to have a debate in the House, perhaps even urgently, on the backlog of court cases, as then we can hear him say that he supports our attempt to clear that backlog. Why not have a debate about it on Monday? We can talk about why the Bill is so helpful in dealing with that problem.
Andy Slaughter
I am going to disappoint the right hon. Gentleman by not taking responsibility for this Government’s court backlog, which is continuing, in the Crown court at least, to grow and to which we have precious little solution at the moment. Nor am I going to put the burden of that on to this type of case. The reason why I am going through a few of these case summaries is to show, on their facts, that these are compelling cases.
The right hon. Gentleman could possibly have said 0.22%, which was the figure that the Government sought to rely on. That was a very low figure. I think he said 3.4%, but I think it is higher than that. I think this is a significant number of cases. I also think they are very compelling cases. He may not want to hear the facts of these cases, but to rebut that with the current Crown court backlog—I will put it politely, I think there is an element of non sequitur there. I do not want to get into a big debate about the MOJ’s finances, but I did mention that any extra money that has been put into the MOJ, or will be over the next three years, is a recognition of the ridiculous levels of cuts that have been made since 2010 and does not begin to address them
Sir John Hayes
But by definition, given the success rate, these changes will take out considerably more than 700 cases. That may create room for others, I do not deny that, but it is pretty hard for someone to argue that they want to free up more resources for the courts and then to argue against provisions that do just that.
Andy Slaughter
With respect, it is not. We are talking about a sum of between £300,000 and £400,000. I do not think that will make a material difference to the Crown court backlog. That is partly—mainly—a result of underfunding, but also of mismanagement by this and previous Governments since 2010. Those listening to the debate can make up their own mind about whether that was a sensible rebuttal of the type of cases that, as a result of getting rid of Cart judicial review, will no longer have a remedy—will no longer be able to come before the courts. It is not unique; it does happen and it can be justified, but it is a very serious step to engage an ouster clause. It is for the Government to make that case, and I am sure that, when I finish today, or when we resume next Tuesday, the Minister will try to make the case. To put the onus on the Opposition is, shall we say, chutzpah.
Let me, in the time I have left, go through perhaps just half a dozen cases. I do not want to take up Members’ time, but I do want to put these cases on the record, because I think that this type of case is exactly what we are dealing with and when one hears about the victims and the potential litigants in Cart reviews, that makes a difference to how we regard them.
Jared is a Tamil who had supported the Liberation Tigers of Tamil Eelam as a teenager and was tortured by the Sri Lankan state as a result. His body was covered in more than 100 scars typical of torture methods used by the regime. Despite that, and a country expert report, his appeal was dismissed. Despite his trauma and the risk that he faced on return, he was detained pending removal. He lodged a Cart judicial review challenging how the tribunal had treated the expert evidence supplied in his case. The case was successful before the Court of Appeal, and he was then recognised as a refugee. It was accepted by the Court that he would have been at real risk of further torture and persecution if returned.
SR, a Sri Lankan national, feared persecution, in part because of his involvement in diaspora activities in the UK. His appeal was dismissed by the first-tier tribunal, and he was refused permission to appeal. Following his application for a Cart judicial review, the refusal of permission to appeal was quashed on the grounds that the first-tier tribunal had failed to consider the evidence of the applicant’s diaspora activities in the UK and whether, in light of the evidence and the arguable change in conditions in Sri Lanka since 2013 when the upper tribunal had given country guidance, he would be at risk on return. The upper tribunal found that the first-tier tribunal had made an error of law and decided to hear the case to give new guidance on risk on return for those involved in diaspora activities. Before the hearing in the upper tribunal, the Home Office conceded the appeal, accepting that SR was a refugee. Without the possibility of a Cart judicial review, SR could have been sent to Sri Lanka, where he had a well-founded fear of persecution.
Andy Slaughter
I will in a moment. Under clause 2, that crucial and focused review will be lost, and with it the potential for fundamental injustices to be prevented. I am coming on to talk briefly about amendments 43, 42 and 44, but I will give way.
James Cartlidge
The hon. Gentleman used the phrase “faulty statistical reasoning”. In 2004, when the current shadow Justice Secretary, the right hon. Member for Tottenham (Mr Lammy), was a Minister, he tried to bring forward a similar measure. Can the hon. Member for Hammersmith remind us of the percentage reasoning used to justify that measure at the time?
Andy Slaughter
Along with “bites of the cherry”, I cannot comment on the shadow Justice Secretary’s activities before I was elected to the House. It might be approaching lèse-majesté for me to intrude on that, particularly given that he dealt with it effectively on Second Reading.
James Cartlidge
In a Bill Committee, the statistic that the right hon. Member for Tottenham, as Constitutional Affairs Minister, used to justify getting rid of Cart JR was 3.6%—an incredibly similar statistic, which suggests that there is some merit in that figure.
Andy Slaughter
We have heard every figure from 0.22% up to 9.6%, and some of the experts made the case for it being substantially above 3%. I am making a separate case, however, which is why I wanted to read into the record some of those case summaries of complex cases. They indicate: first, that they are compelling cases; secondly, that there are a significant number, even if they are a minority; and thirdly, that the figures that we are talking about—I wish we could get more accurate figures; perhaps the Minister could go away and help us with that—are likely to be substantially above 3.6%. I know that the Government have moved only that far at the moment, but perhaps they can be persuaded to move a little further.
I fear that I will not finish today, but hon. Members will be pleased to hear that I am near finishing. I will say a few words on what are essentially probing amendments 43, 42 and 44. As I said at the beginning, they are our way of making the best fist of improving clause 2—they are not our finest hour.
We would like to understand why it is proposed to exclude the supervisory jurisdiction of the High Court to consider upper tribunal decisions to refuse permission to appeal, where it is arguable that the statutory appellate process is tainted by bad faith or fundamental breach of natural justice, unless that question is one of bad faith or breach of natural justice by an act of the upper tribunal itself. Clause 2 permits very limited exceptions to the ouster of the High Court’s supervisory jurisdiction over the statutory tribunal appeals system.
Proposed new section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 sets out the limited exceptions. Proposed new section 11A(4)(c) provides for an exception where a question arises as to whether
“the Upper Tribunal is acting or has acted…in bad faith, or…in fundamental breach of the principles of natural justice.”
That restricts the jurisdiction of the High Court when the bad faith or a breach of natural justice is on the part of the upper tribunal in refusing permission to appeal. If, however, the statutory tribunal appellate process has been otherwise tainted by bad faith or a fundamental breach of natural justice, whether before the upper tribunal or in the first-tier tribunal, the High Court’s jurisdiction would continue to be excluded. That might, for example, be on the part of the tribunal below or on the part of a party to the appeal.
Any appeal that is tainted by bad faith or a fundamental breach of natural justice would therefore not fulfil Parliament’s purpose in establishing a statutory appellate tribunal. Therefore, in the interests of both justice and parliamentary sovereignty, any appeal tainted by either of those factors should not be excluded from the supervisory jurisdiction of the High Court. The amendment could expand the current exception in clause 2 to ensure that it applies to any bad faith or fundamental breach of natural justice.
I pause to catch my breath before I go on to amendments 43 and 44, just in case the Chair was about to interrupt me. If not, I will begin. It is unclear what is proposed by clause 2 having regard to the existing and pending limitations of the tribunal system in securing access to justice for appellants before it, particularly in relation to the function of that system as guarantor of the safety and fairness of administrative decisions. The Bill could be amended to provide a further list of exceptions to the ousting of the High Court’s jurisdiction proposed by clause 2. I propose an amendment that gives examples of circumstances in which there must be special concern about the capacity of the first-tier tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal.
Judicial Review and Courts Bill (Fifth sitting)
Tuesday 9th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
The Committee divided: - Ayes: 10 / Noes: 7 - Question accordingly agreed to.
The Chair
Welcome to this morning’s sitting. I ask that everyone continue to respect the advice and rules on covid restrictions, and remind Members to submit their notes to Hansard and to turn off any devices or put them on silent.
Clause 2
Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
Amendment proposed (4 November): 43, in clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—
(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;
(b) that party was not of full age or capacity;
(c) the appeal before the First-tier Tribunal was not an in-country appeal;
(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;
(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or
(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”—(Andy Slaughter.)
This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—
“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—
(i) bad faith, or
(ii) fundamental breach of the principles of natural justice.”
This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.
Amendment 44, in clause 2, page 4, line 8, at end insert—
“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;
an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;
a party is ‘not of full age or capacity’ if that party is—
(a) a child, or
(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)
an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;
‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;
‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;
‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”
This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is a great pleasure to serve under your chairmanship, Mr Rosindell. I wish everyone a good morning and look forward to another thorough day’s examination of this important Bill.
Amendments 43 and 44 seek to reduce the scope of the ouster clause by introducing numerous exemptions. Clause 2 is carefully constructed and consistent, and identifies the kinds of errors the court could make and deals with each separately. The upper tribunal will not be reviewable on errors of law but will be where it has made a true jurisdictional error or where there is evidence of bad faith or a fundamental breach of the principles of natural justice. That is so we can deal with the inefficiency in the current system while providing adequate safeguards.
The exemptions outlined in the amendment would completely undermine the Government’s objective of tackling those inefficiencies, as a large number of cases would continue to proceed to the High Court on grounds of error of law without any good reason. I understand that some of the circumstances outlined in the amendment are particularly difficult for the claimant. However, we must trust the upper tribunal to take appropriate and proper decisions on all permission-to-appeal applications. Where there are particular sensitivities, we can be confident that the upper tribunal will have considered those in reaching its decision.
The very low percentage of Cart judicial reviews that actually result in a successful outcome for the claimant—as we have discussed, the figure is about 3.4%—illustrates precisely that point. There is no good reason to treat the sorts of cases that come before the upper tribunal—the majority of which are immigration cases—differently from any other sort of dispute that comes before our courts and tribunals by granting them a third bite at the permission-to-appeal cherry, as we have famously described it, which is what the Cart JR system currently does. The amendments would undermine the consistency of the treatment of appeal decisions by the upper tribunal, making it the final court in some cases but not others, simply because of certain factors relating to the claimant rather than to the nature of the error concerned. Our approach is consistent and justified, and properly empowers the upper tribunal to get on with its important business.
Amendment 42 aims to widen the exception to the ouster clause, which relates to bad faith and fundamental breach of natural justice. It proposes including decisions made by the first-tier tribunal as well as the decision of the upper tribunal. I consider the amendment unnecessary. I am sure hon. Members will agree that judges of the upper tribunal are entirely capable of identifying the sort of blatant and serious errors that constitute bad faith or a fundamental breach of natural justice.
The upper tribunal can be trusted to uphold the rule of law, and the drafting in the Bill sets out with sufficient clarity the exceptional conditions in which the upper tribunal should be subject to judicial review—namely, where it has breached the fundamental principles of natural justice or acted in bad faith. In any case, one would imagine that the upper tribunal knowingly upholding bad faith on the part of the first-tier tribunal would act in breach of the fundamental principles of natural justice. Therefore, including a further provision in the Bill outlining a situation that, in my view, is extremely unlikely to occur, is unnecessary. I urge the hon. Member for Hammersmith to withdraw the amendment.
Andy Slaughter (Hammersmith) (Lab)
It is a pleasure to see you in the Chair again, Mr Rosindell, for another sitting to consider this important Bill. I will respond briefly.
The Minister correctly said that the aim of the amendments is to reduce the scope of the ouster clause. That is exactly right, because we do not believe there are adequate safeguards. Without giving away the plot, we will come shortly to the clause stand part debate and our preferred option is to leave the clause out altogether. The amendments are our attempt to say that if the ouster clause were appropriate in the new circumstances, which we do not concede, it should not have such limited exemptions.
The Minister said that the amendment would defeat the Government’s purpose by increasing the number of cases that would still be subject to judicial review. It is my submission that that is not the right way to look at it. It is the justice of the case and the consequences for claimants that we should be looking at. To repeat what I said last Thursday, those consequences are often matters of life and death and severe. In addition, the use of judicial review in Cart cases is already heavily constrained. We have focused on the relatively small amount of money that Cart judicial reviews cost—relative in terms of overall judicial budgets—this would be a part of that sum.
The Government should not dismiss this issue. At the very least, they should think about the extent of the ouster clause. That is the purpose of this debate and I do not believe they have thought sufficiently about it. We are, however, coming to the clause stand part debate, in which members of the Committee will be able to express ourselves rather more clearly and fully. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.
Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.
The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.
Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that
“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
He agreed that it is time to end this type of review because of its inefficiencies.
The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said that
“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Does the Minister think it is a little strange that while Opposition Members argue for those immigration cases to maintain having three bites at the cherry, they do not make the same argument for other cases with potentially higher success rate?
James Cartlidge
I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.
Tom Hunt (Ipswich) (Con)
Given that the Opposition have spent so much time opposing all the steps the Government have taken to fit capacity into the system, does the Minister agree that there is a certain irony that they had planned to hold an Opposition day debate yesterday on how to sort out the court backlog?
James Cartlidge
My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.
Anne McLaughlin (Glasgow North East) (SNP)
If that is the case, and if the Minister is so concerned about the court backlog, does that mean that he will not support the Nationality and Borders Bill, which attempts to criminalise asylum seekers simply for coming to this country because they could not find safe and legal routes, at an estimated cost of an extra £400,000 per year, clogging up the court system even further?
James Cartlidge
It is a fair point, but the hon. Lady and my colleagues may be interested to know another statistic that we have discovered: the average time that these cases take from coming to court to reaching a conclusion is 88 days. That means that hundreds of cases are taking three months to be heard in the High Court. On that basis, we would not bring in new measures to toughen up sentencing on, for example, serious sexual offenders. If we did that, more people would potentially end up being found guilty of those crimes and going to prison for longer, which costs. That is precisely why we are taking measures to free up capacity. For example, in a later part of the Bill we will be remitting more cases from the Crown court to the magistrates court, because it is in the Crown court that those serious crimes will be heard.
James Cartlidge
I will take a second bite at the cherry from the hon. Lady.
Anne McLaughlin
I thank the Minister for that second bite. I know he was not deliberately conflating serious sexual offenders with asylum seekers, but I really want to make that distinction. We are talking about people fleeing for their lives from terrible situations, and in the same sentence he compares them to serious sexual offenders. Does he agree that there is no conflation there?
James Cartlidge
Of course. That is not the point I was making. To be absolutely clear, the point I was making is that we still have to deal with serious acts of violence and crime, whatever the crime may take place. If we do that, our actions may put more pressure on the courts, but I think our constituents would support that. Moreover, if someone comes to the tribunal system seeking immigration to this country, they will have two bites at the cherry—to use that phrase again—which is a consistent position.
James Cartlidge
The hon. Lady shakes her head. [Interruption.] She wants a third bite of the cherry. Well, I am going to ration them a bit, because there are oral questions soon. An inordinate amount of judicial resource is being used to review decisions of broadly equivalent judges who, importantly, are correct in refusing permission to appeal in the overwhelming majority of cases. However, if we take this away in immigration cases, there are still two bites at the cherry, which is consistent with article 13 of the European convention on human rights.
James Cartlidge
I will be very generous and offer the hon. Lady a third bite.
Anne McLaughlin
I have just served on the Nationality and Borders Bill Committee. I did not get a break between that and this Committee—in fact, last week the two clashed—so I know that what the Minister says is not the case. If asylum seekers arrive here by irregular means—in other words, if they come by boat because they cannot find safe and legal routes—they will not have an opportunity to apply for asylum, because they face offshoring and prosecutions. They will end up in the criminal court system before they even have an opportunity to go through the system that the Minister is discussing.
James Cartlidge
Let us be clear and differentiate here. If someone seeks to enter this country illegally, the rule of law and the law of the land apply. We have to deal with them through the courts, as is absolutely right. We think that judicial review is, in effect, an exceptional privilege used in immigration and asylum cases. Some 95% of these are immigration cases, and there are some other types of cases using Cart JR. We think that this is excessive. What we do not think is excessive to use the courts to use the rule of law and all the things that apply in a democracy to ensure that we have effective border controls which, after all, our constituents support. That means that we have the rule of law both at home and for people trying to emigrate to this country, either legally or illegally. The latter is something where our constituents feel particularly strongly that we must be strong in sending a signal that this country is not a light touch for people seeking to enter illegally, even if eventually their asylum claim is found to be legitimate. For those cases, we are generous, and we have shown that in what we have done in the Afghan settlement scheme.
Turning to the method by which are trying to ensure that there is a more proportionate use of resources, the Government understand that there are concerns about the use of these clauses, but we believe that clause 2 as drafted is clear in its intent. Indeed, the independent review of administrative law acknowledged that the use of an ouster clause to deal with a specific issue could be justified. Its nuanced approach emphasised that if there was sufficient justification, and the ouster clause was not too broad or general in scope, it would not undermine the rule of law.
As drafted, clause 2 addresses the previous concerns of the courts in six ways. First, as shown by proposed new section 11A(4)(a), the ouster clause applies only where there is a valid application for permission to appeal from the first-tier tribunal. This is not an extensive ousting of the upper tribunal—it removes only a specific route of review. Secondly, turning to new section 11A(4)(b), the ouster clause does not apply where there is true jurisdictional error. If it were the case that an invalid application was made or there was an application on a criminal law matter, and the court decided to adjudicate it, that would be outside its jurisdiction and open to judicial review. If the upper tribunal was not properly constituted—for instance, if a disqualified judge presided over a hearing—such a hearing would be outside the jurisdiction of the court. The ouster applies where the upper tribunal is functioning as normal, with proper composition of the panel.
Thirdly, two additional exceptions have been added to the clause, to further improve the “safety valve” aspect of the ouster clause. Once again, the Government are not trying to completely oust the upper tribunal’s jurisdiction; rather, they are concerned with ousting the ability to review errors of fact and law made by the upper tribunal. This does not include instances where the upper tribunal has acted in bad faith, or where there has been a fundamental breach of the principles of natural justice, such as if the court decided to hear only one side of the case. These issues concern an abuse of the powers of the tribunal, and we do not see merit in ousting such abuses from judicial review.
Fourthly, the clause is limited only to courts. The wording of proposed new section 11A(2) is explicit that the measure involves removing the jurisdiction of courts from other courts—not executive bodies. The impression given by some of the commentary on the Bill since its publication has been that the clause is being used to remove executive power in general from the court’s oversight, but that is not the case. It is stopping one court reviewing another court of broadly equal standing.
Fifthly, as a notable point and in defence of the integrity of the Union, the ouster clause does not apply to challenges of decisions from the first-tier tribunal for which jurisdiction was or could have been granted by an Act of the Scottish Parliament or of the Northern Ireland Assembly. The clause is clear and explicit. The Government hope that the effect of drafting the above exceptions, and explicitly stating what is and is not covered by the ouster clause, will be to demonstrate that it is possible to develop such a clause that will be upheld by the courts and that it may well improve practice in future circumstances where such clauses are considered. This is a well-considered ouster clause that is designed to meet a clear policy objective and includes appropriate safety valves to prevent injustice. I hope that the Committee will support clause 2.
Tom Hunt
It is a pleasure to serve under your chairmanship, Mr Rosindell. It is certainly the first time; I would have remembered otherwise. I will talk about clause 2 in a general sense. As I mentioned to my hon. Friend the Minister in my intervention, for which I was very grateful, there is a certain irony here. We have spent so much time debating the measures that the Government have proposed to free up capacity in the court system, but they are being opposed by the Labour party, which then has the cheek to hold an Opposition day debate on Monday purely about the court backlog.
The refugees who are arriving here illegally are potential refugees. Many will not be; many will be economic migrants who are fleeing from France, a safe European country. The 2011 Supreme Court decision that led to Cart JR in relation to these cases was a retrograde step, and in some respects has given judicial review a bad name. Judicial review is an important part of the justice system, but the influence of Cart JR has been negative and has given judicial review, which is very important for our justice system and our democracy, a bad name.
There is a debate about whether the success rate for Cart JR cases is 0.6%, 3% or 5%. A success rate of 5% is still extremely low, compared with 40% or 50% for other types of judicial review. We must bear that in mind. We hear that there are 750 such cases a year, at a cost of £400,000. I raised the issue of the financial cost last week, and this was belittled by a witness, who said that the cost was
“the same amount that DCMS spent on its art collection in 2019-20.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 52, Q75.]
Of course, that is not the key point. The key point is the wider pressure on the court system and on the time of our High Court judges. It is very clear that the pressure that Cart JR puts on the system makes it more difficult for our court system to get back on its feet after the impact of the pandemic. I am pleased with the practical steps that are being taken in other areas of the Bill to help with that.
This issue of the first, second and third bites of the cherry is interesting. I have not heard any practical reasons why immigration cases should be treated so differently from other cases by having a third bite of the cherry. We hear that, if there is one successful case, and even if only 2% or 3% of cases are successful, that is enough to justify Cart JR. If that is the only argument, why do we not have a fourth bite of the cherry, or a fifth? Can we say with certainty that, if we put the 97% of cases that are unsuccessful in the High Court to the Supreme Court, there will not be one or two that are successful? If one or two were successful, would that justify endless bites of the cherry? At some point, a balance must be struck. There is a limited amount of resources and significant pressure on the system. It is not unreasonable for the elected Government to make a determination about what is and is not reasonable. Even if the success rate is 5%, allowing endless bites of the cherry is not reasonable. It is not a justifiable pressure on the wider system.
Last Thursday, we also heard from the shadow Minister about many instances in which an individual had been successful in a Cart JR case in the High Court. Of course, such cases would have contributed to the 3% or 5%, but we would be here for about a week if we were to hear about each individual case that formed the 95%, or the 97%. Let us be absolutely clear: many of those individuals would be having a pernicious influence and a negative impact on our country—they would be illegal immigrants—and, frankly, the sooner we can get them out of the country, the better.
Anne McLaughlin
The hon. Member is talking about the sooner we can get rid of these people out of the country. One of the people I spoke about on Second Reading was a Venezuelan man who fled after state actors murdered a friend of his. He knew that he was in danger because he had witnessed that. The first-tier tribunal and the upper tribunal did not interpret his evidence correctly, according to the subsequent judge, after the Venezuelan man successfully got a judicial review. He is surely one of those people whom the hon. Member is talking about—the sooner that we can get rid of these people—because he would lose the right to have his appeal judicially reviewed, if the Member gets his way.
Tom Hunt
The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.
I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.
Sir John Hayes (South Holland and The Deepings) (Con)
I am inspired to speak to this part in our consideration, partly by the Minister’s eloquent explanation of why the amendments are undesirable, partly by the wise words of my hon. Friend the Member for Ipswich on how the traditional system is in a way being besmirched by the gaming of it, in particular in immigration cases, and partly because of the delight of serving under your chairmanship, Mr Rosindell, which I have not done often, but am particularly pleased to do, under the watchful gaze of one of my political heroes, Joe Chamberlain, who began life as a radical and ended it as a member of a Tory Government, understanding, as you and I do, that liberalism is the triumph of frenzied licence over dutiful obligation. It is because of obligation and, in the spirit of Chamberlain, our patriotic respect for our constitution that we must resist the amendments.
To hear some critics of the Bill, one might think that the Cart was embedded in the settlement between Parliament and the courts, and yet it is a modern thing. As you know, Mr Rosindell, it is the product of a decision by the Supreme Court as recently as 2011, when it declared that the High Court could judicially review decisions of the upper tribunal to refuse permission to appeal from the first-tier tribunal, whereas previously it was held that it could not.
At the heart of our consideration of the Bill is a fundamental difference about the character of our belief in the character of judicial review, but also a difference in our understanding of the separation of powers. We saw that in our evidence sessions. We had evidence from academics, notably Professor Ekins who, by the way, authored the report by Policy Exchange—which I commend for its excellent work on this subject. He was very clear that some of the recent decisions by the Supreme Court and other parts of the court system have challenged the supremacy of Parliament.
We also heard from Aidan O’Neill, who said he was a constitutional lawyer, and I understand he is—quite a notable one, from what I read. He said that this was about mutual respect, but mutuality is not the basis of our constitutional settlement. The roles of Parliament and the courts are distinct—the separation of powers; the clue is in the name. Of course there is a relationship between them, because this place makes laws and the courts oversee laws, but judge-made law is not consistent with our constitutional settlement and some of the perverse decisions of the courts in recent years have led, in the words of Professor Ekins, to parliamentary sovereignty being openly questioned. He said:
“Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think”.—[Official Report, Judicial Review and Courts Public Bill Committee,2 November 2021; c15, Q9.]
The defence of the rule of law is not a valid one, as the Attorney General made clear in her speech on these matters very recently.
The issue before us in respect of these amendments is clear. The judgment that was made in 2011 opened a new avenue of judicial review and those Cart judicial review cases have mushroomed since. This is particularly true for immigration cases, as my hon. Friend the Member for Ipswich said a few moments ago—not exclusively so, as the Minister pointed out, but largely. This has to be changed. Given that a previous Labour Government tried to tighten the requirements for judicial review, it is surprising that the current Opposition do not understand that this is a return to a stable and steady position—a normal position—that enshrines judicial review as an important part of the way in which citizens can acquire justice, but does not allow it to become what it has become, a means for people to perpetuate political debates that they have lost earlier. This is using the courts to—I never thought we would be speaking so much about fruit during the course of our deliberations, but to use the word that has been used several times before—have many bites of the cherry. We ought perhaps to think about another fruit, just for the sake of variety, but I suppose cherries will do for the sake of argument.
As I pointed out when we last met, the Opposition were going to have a debate yesterday on the court backlog. The amendments seem to me to have the effect of doing the very opposite and do not address the issue of the court backlog. We know that a very small number of cases that are brought under Cart judicial review—something like 3%—are successful, and yet there were around 750 per year between 2026 and 2019. We have many cases being brought on a wing and a prayer, with neither the wing flying nor the prayer being answered in terms of the result of the case. There is a pressing need, just on those practical terms, to reform judicial review in this respect.
I say to the Minister—not provocatively, but I hope helpfully—that I think the Bill can go much further. I think it is a very modest reform of judicial review. I refer him again to Professor Ekins’s work. There is a good argument for changing the rules of evidence, for example, which would tighten the system considerably. There is a good case for dealing with the effects of the Adams case, the Miller case and the privacy case, which he will know had profound effects on judicial review and on the balance between Parliament and the courts.
Janet Daby (Lewisham East) (Lab)
I am also inspired to speak in this debate. I think that I would be doing my constituents an injustice if I were not to say something on this really important issue. I give credit to the hon. Member for Glasgow North East, who tried to give more of a human approach, through the experience of the person who went through the court proceedings to do with Venezuela. I appreciate her attempt to do that, although it was not very well received by Government Members.
I just want to share a few things. I do not come from a legal background, but I do come from a social care background, and I have worked with refugees and asylum seekers in the past. People may or may not be aware of some of the really abusive situations that they face when they are travelling from their country of origin and try to find passage over here. Some of the stories that I am aware of involving young people and children, although the clause is not necessarily about children, are absolutely horrific. People are raped, abused and threatened at gunpoint to be silent. It is very disturbing to hear of those cases. When there is not enough evidence, or evidence is not being received properly, during the first court hearing and the second, but it is found, during the third hearing, that actually there is a clearer understanding and a clarity that then would go on to save somebody from suffering a level of persecution if they were returned to their country of origin, I think that is worth while.
I do not want to take up too much time, but I will briefly talk about just one case that I happened to work on when I was working as a social worker. It involved a person who was seeking political asylum at the time. He went through the process three times and eventually received status in this country. But on one occasion, his parent was very ill and on the brink of death, so he decided to go back to his country of origin. I am not going to name names or countries, because of confidentiality, but he went back to that country to try to see his mother. Then his wife frantically came to me to say, “He hasn’t returned home on his flight. He’s been missing for two days. Can you help?” At the time, I did not know what to do to help, but I contacted the embassy, and the embassy contacted the country, and found out this person’s identity and that he had been put in prison. It was almost as if the keys had been thrown away because they realised who he was. After the contact that I was able to make with the Government, they were able to put him on a flight back, because somebody showed some care in his situation.
My point is that we are talking about human beings and human lives. We are talking about saving people from persecution and death if they return to certain countries of origin. I am talking specifically about asylum seekers and people who need refuge in our country.
Andy Slaughter
We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.
As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?
Sir John Hayes
I do not want to prolong the hon. Gentleman’s peroration except to say that a third argument has been made, which relates to the integrity of judicial review per se. When only 3% of Cart cases are successful—20-odd cases out of 750—the very integrity of the system is undermined. Notwithstanding the backlog, surely he accepts that it is important that we reform something that is clearly going badly wrong.
Andy Slaughter
I do not accept that as a separate point. I understand that that has been the thrust of the right hon. Gentleman’s argument in Committee, but it is a criticism of his own Government rather than my approach. In my view, the Bill does not go far enough and does not approach judicial review in sufficiently robust or constitutional terms; rather, it is taking what we have described as a tit-for-tat approach. However, we are where we are with the Bill. That is a matter that he must take up with his own side. I will talk about the 5%, but I do not want to say any more about the backlog. It is an incredibly important issue, and I look forward to the debate on that resuming, but frankly it is irrelevant to our proceedings, and it is a stretch to introduce it.
On the matter of cherries, this has been characterised as simply an immigration matter. Most Cart judicial reviews are of immigration cases; that is important in terms of the consequences, but it is not solely about those cases. If one listened to what Government Back Benchers say, one would think it was solely about that, but as has been said several times, Cart was not an immigration case. This form of judicial review applies to upper tribunal cases, regardless of whether they are immigration cases. That needs to be on the record.
I was looking yesterday at written evidence from Justice on the cherry point—other Members may have seen it as well. It is brief so I will read it, because Justice puts in better than I could, and I think we probably need to take this head on. Justice says:
“Cart JRs are not about having a ‘third bite at the cherry.’ There is also an important wider public interest at stake. Cart JRs prevent the UT from becoming insulated from review, by ensuring that there is a means by which errors of law, which could have very significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Philips said, Cart JRs ‘guard against the risk that errors of law of real significance slip through the system’. UT judges are specialists in their field, however as Lady Hale recognised ‘no-one is infallible’. Cart JRs mitigate against the risk of erroneous or outmoded constructions being perpetuated within the tribunals system, with the UT continuing to follow erroneous precedent that itself, or a higher court has set.
The Cart JR cases that succeed will involve either (i) an important point of principle or practice, which would not otherwise be considered; or (ii) some other compelling reason, such as a wholesale collapse of fair procedure. These are the second-tier appeals conditions that were set as a threshold by the Supreme Court in Cart, and are now in the Civil Procedure Rules, for a Cart JR to be considered. The Supreme Court sought to address the most significant injustices while making efficient use of judicial resources. It was in fact the Supreme Court’s intention that few Cart JRs would be successful, but those that were would be the most egregious and important cases with serious errors of law.
Due to the second-tier appeals conditions, Cart JRs involve only the most serious errors of law. If a Cart JR is successful, it will mean that the applicant had not been given a lawful ‘proper first bite of the cherry’ in appealing a decision to the FTT, and the UT had unlawfully refused permission to appeal the unlawfulness. Cart JRs also do not in any way determine the claimant’s substantive case, or whether the claimant should be allowed permission to appeal—this is for the UT to decide following a successful Cart JR.
It is also wrong and, as described by Lady Hale in Cart, a ‘constitutional solecism’ that since Parliament designated the UT as a ‘superior court of record’ Parliament excluded any possibility of judicial review. The decision in Cart did not involve the interpretation of any statutory provision that could be described as an ouster clause, and statutorily designating a body as a superior court of record, as Laws L.J. pointed out at first instance, ‘says nothing on its face about judicial review’.”
That is all I want to say about cherries this morning, but I think we have been led into the orchard erroneously on that point.
The Minister quoted one or two Supreme Court members. I could quote a number in aid of my submissions, but I will limit myself to three different types of advocate who would not always support Cart cases specifically. One, whom I think I mentioned on Second Reading, is Lord Neuberger, a former President of the Supreme Court. He said only a couple of weeks ago that it is “always worth remembering” that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected. Ouster clauses, for example, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity.”
One of our witnesses was Professor Feldman, who gave a balanced account of his view of the Bill. He said during our evidence session on this matter that
“I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 25, Q24.]
Dr Johnson
The hon. Gentleman is making an argument about the importance of being able to review almost any decision. He said he accepts that judicial review in normal circumstances is looking at Government administrative decisions, and that is what it was set up for, yet in this particular case—the Cart case—it is reviewing a judicial decision. Will the hon. Gentleman therefore clarify whether it is his position and that of the Opposition that all judicial decisions made at this level should be subject to review, and that this third bite of the cherry, as the Minister has said, should not be open only to those undertaking immigration cases? As his hon. Friend the Member for Lewisham East said, those are serious and important cases, but other cases going through the courts also have serious and profound consequences for those taking part in them. Should everybody be able to review a decision that has been made at High Court level?
Andy Slaughter
The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.
A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.
Andy Slaughter
It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.
Dr Johnson
I am sorry if my question was not clear, but I have not really had an answer to it. Do the Opposition believe that all judicial decisions made at upper tribunal or superior court of record level should be subject to review in the way that the Cart JR provides specifically for immigration cases?
Andy Slaughter
We have explored at some length the effect of Cart as it operates at the moment, but I have not heard from the Government how they think those cases should be addressed, other than saying, “Well, every system has its losers and we will just have to live with the consequences of that,” either because of the financial cost or for some other reason.
Dr Johnson
Again, I am sorry if I am not explaining my question clearly, but does the hon. Gentleman believe that all people who take a case to court, perhaps with profound consequences on their lives, should have that third bite of the cherry? Is he arguing for all decisions to have judicial review, or does he believe that cases in the Cart—that is to say immigration cases—should specifically get an extra third bite that others do not get?
Andy Slaughter
I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.
I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:
“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”
That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that
“even a single case can have wide ramifications.”
If that applies to judicial review more widely, why does it not also apply in Cart cases?
Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.
Anne McLaughlin
I am told it will be a great pleasure to serve under your chairmanship, Mr Rosindell. I am sure it will be.
As I often say in this place, we never know who is watching. We probably do not have a huge audience watching this debate, and I understand it is going out in audio only at the moment, unless that has been fixed. However, some people will be listening or watching, so it is worth repeating exactly what is happening here so that lay people understand. I will briefly go over it.
If an individual feels that a public body—for example, their local NHS, the Department for Work and Pensions or the Home Office—has failed to correctly apply the law in making a decision about their case, they can appeal to the first-tier tribunal. If that finds against them and the individual believes that there is an error of law, perhaps by overlooking vital evidence or by misinterpreting the rules, they can apply to the first-tier tribunal for permission to appeal at the upper tribunal. If the upper tribunal refuses to appeal the decision, right now that person can ask to have the decision judicially reviewed.
All sorts of criteria have to be met. Someone does not simply say, “Can I have a judicial review?” and get it, but right now they can at least apply. What we are discussing today—clause 2—would take that right away from them. There has been talk about how many bites of the cherry someone can have, but only the tribunal system is having the independent oversight of judicial review removed. All other judicial reviews will continue, and the Minister said that in his speech. I am not sure that is something to be proud of, because we know that the tribunal system often deals with the least powerful in our society. That is who we are removing the access and the right to justice from.
As the Law Society of Scotland has pointed out, decisions on appeal at the tribunal are often taken by a single judge based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, nor to answer any questions that the judge might have. In the last week, we have heard all sorts of arguments about how the powerful—in other words, MPs—have to have more opportunities to plead their case. In terms of the Committee on Standards, a huge number of Conservative MPs talked about how the case was decided on the paperwork, which it was not—that is not quite true—but a lot of the evidence was considered in writing alone, which is somehow wrong when it comes to powerful MPs, but right when it comes to people in vulnerable positions. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.
The Immigration Law Practitioners Association collated 57 real-life case studies of people who had accessed the right that they will no longer have once this legislation is passed. The case studies included a child who applied to remain in the UK in order to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions whereby, if deported—we have talked about the man who witnessed a murder in Venezuela—their lives would be at risk or they would be separated from their family. If we go ahead with this measure, that is what would happen, and I do not know how anybody here in Committee can justify that.
It is important to explain for anybody not au fait with the legal system that we have different layers of decision making because sometimes decision makers get it wrong. I will give a couple of examples. I sat on the Committee that considered the Nationality and Borders Bill, so I was not here for the first sitting of this Committee. I was astonished to read that a member of this Committee asked why any judge’s decision should be questioned. A fundamental part of our justice system is that we accept that decision makers, including judges, get it wrong and have to be questioned.
The justification given by the Government for ousting Cart and Eba in Scotland is the high volume of applications versus the real number of successful outcomes. Let us look at that. The evidence to support that position was so flawed that the Office for Statistics Regulation launched an investigation. It found that the real success rate was at least 15 times higher than the Government’s figures. Why did they use those figures in the first place? Was it because they knew that if people understood just how many people it does affect, they might have less sympathy with their position?
Anne McLaughlin
I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.
Dr Johnson
It is therefore the hon. Lady’s position that the Government should give legal passage to those people who are arriving on boats from France—perhaps put on ferries for them? Does she recognise that that could lead to increased trafficking of people and increased suffering?
Anne McLaughlin
No. I still think that is an absolute nonsense. If we are going to have a debate about the Nationality and Borders Bill and the wickedness of pushing back not boats, but people—human beings are on those boats—I am happy to do so, but I do not imagine the hon. Lady will be happy with that. I am happy to have a conversation about that afterwards.
Angela Crawley (Lanark and Hamilton East) (SNP)
Is it not the case that, because there are no safe and legal routes available, the Government have made that passage practically impossible, and the associated member states, which also have a responsibility, have made it impossible? Those individuals are falling into the hands of criminal gangs—traffickers—and are being exploited. Therefore, safe passage is not possible for many people.
Anne McLaughlin
I absolutely agree with that. I am happy to talk about this because I do not think the Government have a leg to stand on when it comes to how they plan to treat the most vulnerable human beings on our planet.
That takes me to some examples of why the Cart JR is so important. I talked about the case of the Venezuelan man, and a Conservative Member said that it was sad but true that some people would fall through the net. We are not talking about somebody appealing a parking fine; we are talking about somebody who is alive today because he was able to access—
Anne McLaughlin
Absolutely. I would love to hear what the hon. Gentleman has to say.
Anne McLaughlin
The “third bite of the cherry” is not about whether the case is correct or the person’s claim is correct; it is about whether they got the correct process and mechanics in the first place. If they were not able to access justice in the first place, they should have the right to have that heard by a judge.
Anne McLaughlin
I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.
There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.
Sir John Hayes
I wonder whether the hon. Lady will provide some clarity about the parameters within which she believes the system should work. Presumably, she cannot be saying that there should be unlimited rights of appeal. She cannot be saying that there should be no structure around how people can access courts and use them. She cannot be saying that every person who arrives in Britain should be able to appeal again and again. There must be some limits, some parameters, some rules and some grounds. What are they?
Anne McLaughlin
We have them already. I am perfectly happy with what is in place. It is the right hon. Gentleman’s Government who seek to change that and take away people’s access to justice. It is not me who is trying to change it. I am the one trying to stop them changing it and taking away people’s rights.
I will tell the Committee about another case. The claimant was in a relationship with a British citizen, and they had two children who were also British citizens, but the claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review—the thing that Government Members want to take away from these people—the decision was overturned. The upper tribunal allowed the appeal under article 8. However, without the Cart judicial review, the family would have been separated.
The final person I want to talk about, from the Public Law Project’s evidence, is a Sri Lankan national who feared persecution, partly because of his involvement in diaspora activities in the UK. His perception was that he would be viewed as someone who was seeking to destabilise the integrity of Sri Lanka. It was argued that the first-tier tribunal judge had acted procedurally unfairly in refusing to consider all the evidence, including valuable video evidence, when deciding that the appellant was not actively involved in diaspora activities as claimed. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but was finally granted on appeal, where it was considered that there were legal and compelling reasons for granting permission. An order was made quashing the upper tribunal refusing permission.
Sir John Hayes
I wonder whether the hon. Lady will give me one more bite of the cherry.
Anne McLaughlin
I will finish this story. Before the hearing in the upper tribunal, the Home Office conceded the appeal and accepted that the appellant was a refugee. If Cart had not been an option, that man would have faced deportation and almost certain persecution. Having lived and worked in Sri Lanka, and having kept in touch with many people there and many Sri Lankans living here, I can tell Members that that man almost certainly would not still be here had he been deported and denied access to Cart judicial review—the thing the right hon. Gentleman wants to take away. I will let him come in and explain that.
Sir John Hayes
But 97% of these cases fail, and they fail on the grounds that the hon. Lady says she supports—she supports the existing system, as she made clear in her answer to my previous intervention. Given that she supports the existing system, and 97% of these cases fail, does she not recognise that something is going badly wrong?
When cases fail in respect of immigration, does she support the rapid deportation of people who have been through the system, sometimes more than once, and failed and had their case found to be wanting? Does she want those people who are found to be acting illegally to be deported, as we all do?
Sir John Hayes
I said 97% of cases fail. When they fail, those people have exhausted the legal avenues that the hon. Lady says she supports—the current system, criteria and means by which people can make their case. When immigration cases fail, does she support the speedy deportation of those people?
Anne McLaughlin
On the issue of 97% of the cases failing, if the decision-making processes at the beginning of the claim were better, we would not have all those people going through the tribunal system. I absolutely support improving the capacity and decision-making process in the Home Office.
Angela Crawley
Is it not the case that those figures have been widely disputed? We have covered that intensively already. The Government’s parameters for success and failure are defined fairly arbitrarily in comparison with what we would understand or define as a successful testing principle, which is what judicial review is designed for.
Anne McLaughlin
I thank my hon. Friend for reminding me of that. I foolishly accepted the 97%, knowing it was not correct.
Paula Barker
The hon. Lady has been generous with her time. Does she agree that, as we heard in the evidence session, Cart reviews are not just about immigration? They are also about sexual justice cases. It is starting to feel as if the Government wish to have a further bite of the cherry in their hostile immigration policy.
Anne McLaughlin
That is an excellent intervention and I absolutely agree. Interestingly, my notes state that we are not just talking about immigration. I agree about the hostile environment; it is vile. If I am right in saying that most of them could not care less about migrants, let us talk about cases of access to vital benefits for people with disabilities and others facing destitution and homelessness, who will be affected. Those are people who have been left without a last line of defence. This legislation will affect all four chambers of the upper tribunal. Individuals will no longer be able to apply to the High Court.
Dr Johnson
The hon. Lady said that she believes that we do not care about migrants. I find that deeply offensive. As a paediatrician I have worked with children who have been alone—unaccompanied asylum seekers—examining them and looking at their injuries and scars. We do care very much about migrants and reducing people trafficking—this evil, barbaric trading of people, which we need to stop.
Anne McLaughlin
What I find offensive is the way in which asylum seekers are treated right now, and the much more awful way that they will be treated if the Nationality and Borders Bill goes through in its current form—or, actually, in any form. I find that utterly offensive. I understand that on a one-to-one basis people will show kindness to individuals, but the hon. Lady is still going to vote for a system that will criminalise people who are desperate enough that they have no choice but to flee from their country, including people in Afghanistan right now whom we have not given safe and legal routes. They cannot wait any longer; they will die if they wait any longer. The hon. Lady will vote to criminalise them, or to offshore them, or to separate them from their families.
I am really pleased and absolutely certain that, one to one, the hon. Lady shows nothing but kindness and respect for people. However, that is very different from voting for a policy that does all the things that I just listed.
Angela Crawley
I am grateful to the hon. Member for Sleaford and North Hykeham for also making that point. Is not the essence of the problem, therefore, that the criminality that should be targeted is that of the traffickers and those who are exploiting these vulnerable individuals, rather than the individuals themselves—individuals who, through no fault of their own, when they arrive in the UK, are in an absolutely destitute situation? To criminalise them for using an illegal channel does not get to the root of the problem, which the hon. Lady has already correctly identified.
Anne McLaughlin
I could not have put it better myself. I completely agree with that. I do want to go on to look at other people who will be affected. Let us imagine that the Members opposite are not that bothered about asylum seekers and migrants, but they do care about people with disabilities. Currently, 16% of the working-age population live with a disability. That rises to 45% of adults over the state pension age.
Nobody can guarantee that they will not, one day, have a disability—that they will not, one day, be absolutely dependent on being able to access disability benefits. If for some reason they were to be wrongly denied those benefits, as happens far too often, and appeal to the courts, they need to have the right to question the decision-making process because, as we have heard, decision makers do not always get it right.
Sir John Hayes
On a point of fact, could the hon. Lady tell us how many Cart cases are brought by disabled people?
Anne McLaughlin
Strangely enough, no I cannot. Can the right hon. Gentleman tell us?
Sir John Hayes
The hon. Lady must know that over 90% of Cart cases are immigration cases, although it is possible that some of those people might themselves be disabled. If she then takes the fewer than 10% of cases that are not immigration cases, a small minority of those will be of the kind she is describing. Of course, the hon. Lady is right that when disabled people are disadvantaged and need recourse to law, they should have it. However, the idea that she is promulgating—that somehow the Government are acting in a way that is disadvantageous to significant numbers of disabled people in the way she is suggesting—is not only inaccurate but irresponsible.
Anne McLaughlin
I do not think I suggested that there were huge numbers of cases of people with disabilities. What I said was that there are huge numbers of people with disabilities and huge numbers of people who could have disabilities in the future, and that they will be denied access to justice if they do not get justice first time around. That happens so often.
Anne McLaughlin
I am very pleased to hear that the right hon. Member has given up. Feel free to intervene again. [Interruption.] I will say that, from a sedentary position, he says that there are none so blind as those who will not see.
Anne McLaughlin
The right hon. Member can quote scripture at me all he likes. If we are going to talk about scripture, then we are going to talk about Christianity, which is surely about compassion. To say that it does not matter that this will affect people with disabilities because there are not that many of them who will be affected is just wrong.
Anne McLaughlin
That is what he implied. Anyway, I wanted to move on to ouster clauses.
Ouster clauses put decisions beyond the reach of the court. Despite the Government backing down after an outcry on proposals to include them in the Bill, they said:
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
I agree with Amnesty’s proposition that the Government are explicitly using it as a test run for ouster clauses, and that it is a blatant and disturbing attempt to get rid of judicial oversight in other policy areas. As it also says, “The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and separation of powers.”
I suggest that we heed the warning of the Law Society of England and Wales that, “It is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy.” They do not say anywhere, but there are not many of them, so let us not worry about it.
Judicial review may be inconvenient for the Government at times, but that is no justification for its removal. The implications of the Bill could be far-reaching, given the legal framework and its potential future use. The Bingham Centre for the Rule of Law, which I hope Members respect, said, “it is reasonable to say that ouster clauses are at odds with the rule of law.”
Finally, last week, in reference to the now former MP about whom the Standards Committee produced a report—I think all Members know what I am talking about—the Leader of the House said:
“It is not for me to judge him—others have done that—but was the process a fair one?”—[Official Report, 3 November 2021; Vol. 702, c. 938.]
That is the crux of judicial review. If the Government believe that we do not need access to Cart judicial review, did those who used it to win and get justice—such as the Venezuelan man fleeing for his life, the child requiring lifesaving treatment or the family who could finally be together—not require it, or were they not worth it?
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairmanship, Mr Rosindell. I will speak briefly about Brexit, which, as we know, happened a couple of years ago. After speaking to many constituents, one of the main reasons that they voted for Brexit was immigration and control of the borders. It is still a huge topic when I go door to door every week to speak to my constituents. Having got Brexit done, the Government said that they would do everything in their power to take control of the borders. This important Bill is part of that. Opposition Members should remember that, although they oppose the Bill, many of their voters agree with it. It is important to get it through.
Anne McLaughlin
Does the hon. Member think that politicians and political parties should slavishly follow public opinion, or that they should propose their own values and principles, based on human rights, and seek to take people with them and change public opinion?
Nick Fletcher
The Government, and we as MPs, should listen to our electorate. I believe the Government are doing that. I understand that it is an extremely complicated subject, but I am afraid that when my voters see planes full of convicted criminals get last-minute reprieves and are taken off those planes, they lose faith in this place, in Opposition Members and in the entire system. It costs hundreds of thousands of pounds, too. I understand and appreciate that people sometimes fall foul of the system, but we have heard that it happens between 0.22% and 5% of the time—that is what we have heard. We must look after our borders and keep them under control.
Paula Barker
We are on day three of going through the Bill. Even at day three, what I have heard from the Government Benches is purely about immigration. What would the hon. Member say to constituents of his who are looking to go through a judicial review by the court from a social justice aspect? I have heard nothing from the Government Benches regarding that—it is all about immigration and having voted to get out of Europe.
Nick Fletcher
I think the hon. Lady has heard from the Government Benches many, many times that the majority of these cases are about immigration. When Labour Members have been asked how many bites at the cherry they want, we have never once had an answer. Would she like to come back on that? I assume not.
Andy Slaughter
If the hon. Gentleman is seeking an intervention, I will provide him with one. The hon. Member for Ipswich said that Cart cases were a small number of cases, and even if they were justifiable, mistakes happen. I do not agree with that, but he made the point. I think, with respect, that the hon. Member for Don Valley is saying that it would be a good thing if cases that were unlawful were covered by the ouster, which is about preventing judicial scrutiny. In Cart cases, whether free, 7% or 5%, those cases were unlawful. It is not that we are not prepared to put the resource in and do not believe we should prioritise that type of case. I want to be clear about this. Is he saying that it is good if we introduce the ouster in Cart because that will mean that cases where an unlawful act has taken place will still not be decided and that deportation, or whatever he wishes to see, will happen, contrary to law? From the once party of law and order, that does not sound right to me.
Nick Fletcher
I thank the hon. Gentleman for his intervention but I believe, in all fairness, that he has reiterated what I said before, and my reply would be exactly the same. How many times do we have to keep coming back to this? It is the same thing. It is about the majority of immigration cases. We seem to be batting back and forth with this, but Opposition Members are not coming up with the answers that I am asking for, either.
Sir John Hayes
The reforms that we are arguing for are to restore the system that prevailed throughout the lifetime of the previous Labour Government. This change happened in 2011. If Opposition Members are so exercised about the need for the system to be as has prevailed in the past few years, why did they do nothing about it in the long period they had in government, when they presumably felt that the system that we are now trying to restore was perfectly adequate?
Nick Fletcher
I thank my right hon. Friend for that, but I want to move on because I am conscious of time.
I do understand that these people that are coming over here are leaving places that are in a terrible state and what they are leaving is sometimes awful, and I do have full sympathy for that, but there is a legal way of entering this country, and I believe that everyone should take the legal way into this country. When people get into these small dinghies they know they are entering our country illegally. If they are entering our country illegally, then they must have to deal with the consequences that go with that.
Anne McLaughlin
On a point of order, Mr Rosindell. I am sorry to interrupt the hon. Gentleman, but is this within the scope of the Bill? This is not a Bill about borders or preventing people from coming in.
Nick Fletcher
I have almost finished anyway. If I keep being intervened on, it might take a little longer. My argument is that if people are coming into this country on their dinghies and entering illegally, then they will be dealt with through the system, and I do not believe that they should have a third bite at the cherry. That is all I am trying to say.
James Cartlidge
It is a pleasure to wind up this stand part debate, which has been passionate. We have had some excellent speeches and interventions from both sides, and I will refer briefly to a few of them. The hon. Member for Lewisham East said that we are talking about human beings. We have heard cases that all of us would be sympathetic to, but that is not the point. Those using all the other parts of the legal system, where it is absolutely standard to have “two bites at the cherry”, are human beings too.
If there is a planning case, for example, where some houses are approved and your parish disagrees, it can seek judicial review through the High Court. If that is denied, it can potentially—although it is unlikely—try the Court of Appeal. That is it: two bites. That is the standard procedure, and it will still apply for cases of immigration and asylum, including all the people we have heard. As to what would happen to those who were successful, that is where we have to make a judgment on proportionality and accept that there would potentially be some cases that would have been found to be unlawful. However, as my hon. Friend the Member for Ipswich said in an excellent speech, where do you draw the line?
The Labour Front-Bench spokesman, the hon. Member for Hammersmith, quoted Professor Feldman in aid, but it was Professor Feldman himself who admitted that ultimately when we look at it—he took a very balanced view—this was a disproportionate use of resource, where 96.6% of cases are proving to be unsuccessful. When the rate of failure is so high, I wonder why legal representatives are advising their clients to go down that path. It calls into question whether it is, in effect, another route of appeal, and a chance to extend the case further, because, as I said earlier, it can be in the system for up to three months.
Andy Slaughter
I think the Minister makes my point for me. I deliberately quoted Professor Feldman because, yes, he did see some merit in the proposals of Cart, but he went on to warn about the wider dangers—the series of quotes that I gave was on this point, which I am sure the Minister will address—of opening the door to a much wider and further restriction through the use of ouster in future.
On the cherry point, the argument I put forward was that an unlawful decision of the first-tier tribunal is not being picked up by the upper tribunal—hence the illegality and hence the deportation, or whatever it is, happening contrary to the law—and is being picked up through Cart. It is the first bite at the cherry. It is correcting an error at first instance, which has not been picked up by the upper tribunal.
James Cartlidge
The hon. Gentleman has been asked repeatedly whether he thinks, on that basis, that we should extend the right to three bites at the cherry to all other areas of law. What would be the cost? How much more resource would that take up? If he does not think that, he must be saying to all our constituents that immigration and asylum are exceptional, and overwhelmingly that immigration cases should have that additional right. I think our constituents would disagree. It is right for the Government to exercise judgment on matters of the use of resources.
Sir John Hayes
This is precisely the point I made when I intervened on the hon. Member for Glasgow North East. What are the parameters? What are the limits? Where is the line drawn? We have heard none of that from any of the critics of the Bill and the Government are simply trying to re-establish the parameters that prevailed for most of time, which give the system integrity and substance, and which make it not only workable but defensible.
James Cartlidge
I am grateful to my right hon. Friend. I want to correct one point about what happened under previous Labour Governments. It is quite extraordinary that the hon. Member for Hammersmith talks about this tightly drafted ouster clause somehow being a precursor to further ouster clauses that could go much wider. As I said on Second Reading, the Minister responsible for Labour’s Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the right hon. Member for Tottenham (Mr Lammy), admitted in this sort of Committee sitting that they were trying to bring in the mother of all ouster clauses, so widely was it drafted. To be clear, it was not the same system. It was not the upper tribunal. There was a single-tier immigration and asylum tribunal. Judicial review was in that sense the second tier. They were going to remove it even where they did not have the upper tribunal in place. That is an extraordinary situation and it underlines that what we are restoring is a situation wholly consistent with the European convention on human rights.
James Cartlidge
I will take one more intervention from the Opposition, and then another from my right hon. Friend.
Andy Slaughter
I am not going to speak for my right hon. Friend the Member for Tottenham, who is better able to speak for himself. Let us imagine that the Minister was correct, and that that was an error. Why have the Government not learned from that? Why are they coming here to make the same mistake again, in the same terms?
James Cartlidge
The hon. Gentleman does not want to answer, because he knows he cannot defend it. He cannot answer the point. If he thinks it right that in order to find these few cases of legal merit, someone should have three bites at the cherry, why does he not apply that to all other areas of law? He either thinks it should be applied, in which case, clearly, we would be gumming up the courts with a much greater burden of pressure, which would make clearing the backlog completely impossible; or he thinks that immigration and asylum is an exception. You cannot have it both ways.
James Cartlidge
I am not giving way to the hon. Gentleman again. I give way to my right hon. Friend.
Sir John Hayes
I want to emphasise what the Minister is saying. He is going much further than I did. I was giving the Opposition too much credit—saying that we simply wanted to return to a system that prevailed before 2011. The Minister has told us, revealingly, that the Labour Government wanted to restrict the system further. They wanted to do more than this Bill does. Frankly, on that basis, the Opposition case seems to fall at the first hurdle.
James Cartlidge
My right hon. Friend is absolutely right. Let us be clear: the Labour party can take up as many positions as they want on ouster clauses, supporting them when in government, opposing them now, but a High Court judge cannot sit and listen to two cases at the same time. That is a fact. The question of resource is fundamental.
I want to return to the point about backlog. My hon. Friend the Member for Ipswich made an absolutely correct point. Of course this matters in the context of backlog—it is absolutely absurd to suggest otherwise. I have asked the senior judiciary about the backlog and the pressure points for capacity. Of course, there is a pressure point in terms of judicial resource, when we look at the limited number of very experienced High Court judges and so on. It is by definition a limited resource. I asked where we will find, for example, the judges to take murder cases. They will come from High Court judges. It may not be a judge that sits in the administrative court on this sort of appeal—it may not be someone who sits on a Cart JR—but it could be. The resource has to come from somewhere and more pressure on the courts, with hundreds of cases a year for something where the chance of success is so low, completely undermines our ability to deal with other serious cases. I am bound to point out that the Opposition voted on Second Reading against the entire Bill, which includes many other measures that reduce the pressure on the Crown court, as we shall hear later.
It is absolutely outrageous for the hon. Member for Hammersmith to bring in rape. It is totally indefensible for him to do so. He knows full well that in the wake of these terrible murders, all the focus of the Government and people across the country is on the great anxiety felt by women and girls about what is happening. We all share that. We all sympathise with the families who were hit by those tragedies. That is why we have measures in place across the board. We have published the End-to-End Rape Review precisely to increase the number of cases that the police choose to take forward, that the Crown Prosecution Service chooses to prosecute and which end up in court. That is the whole point of the review.
The key point is: a rape case is indictable. Where will it be heard? In the Crown court. In the Bill we have clause 10, which moves more cases from the Crown court to the magistrates so that we can free up 400 sitting days. That is a huge amount: 180 plus 400 is 580 sitting days. That is a lot of resource, so it does matter. I am sorry, but it is wholly unacceptable to conflate the two points.
Our constituents understand the basic point, as mentioned by my hon. Friend the Member for Ipswich, that gumming up the courts with immigration cases with very low chances of success using a right not available to most of our other constituents through other forms of justice will have an impact on the backlog. They know that the right thing to do is to remove this route of judicial review. That is why I urge my colleagues, with the huge amount of common sense that exists under my merry band of Committee members, to vote for clause 2, so that we streamline justice in a way that is fair and equitable for all people in the justice system. The clause would ensure that we have proportionate use of resource so that we can bear down on the backlog. I urge colleagues to support clause 2.
Question put, That the clause stand part of the Bill.
Judicial Review and Courts Bill (Sixth sitting)
Tuesday 9th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Chair
Before we begin, I remind hon. Members that they are expected to wear a face covering except when speaking or if they are exempt. This is in line with the recommendations of the House of Commons Commission. Please give one another and members of staff space when seated and when entering and leaving the room. I remind Members that they are asked by the House to have a covid lateral flow test twice a week, if coming on to the parliamentary estate. That can be done either at the testing centre in the House or at home. Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent mode. Tea, coffee and any other drinks, apart from water, are not allowed during sittings.
Clause 3
Automatic online conviction and penalty for certain summary offences
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 45, in clause 3, page 4, line 29, at beginning insert—
“(1) Before this section may be commenced, the Secretary of State must—
(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences as set out in Clause 3 of this Act;
(b) lay before Parliament the report and findings of such independent review; and
(c) provide a response explaining whether and how such issues which have been identified would be mitigated”.
This amendment would require a review of Clause 3 of this Bill before it is introduced.
Good afternoon, Sir Mark. It is, as ever, a pleasure to serve under your chairmanship. I would like to take this opportunity to welcome my hon. Friend the Member for Hammersmith back to his place on the shadow Justice Front Bench. It was my privilege to serve as Parliamentary Private Secretary to our wonderful Mayor of London, Sadiq Khan, when he was shadow Lord Chancellor and my hon. Friend was a shadow Minister. I was pleased to learn from him then, and continue to do so today. It is also good to welcome the Minister to his place as we face each other across the room formally for the first time. I hope that this will be the first of many such opportunities.
I do not underestimate the job that the Minister has taken on, given the crisis in our courts, the record backlog in the Crown court and elsewhere, and a Justice Department stripped of resources over the last decade. Just in case he tries to rely again on the covid pandemic as an excuse, let me point out that it was all in a terrible mess long before covid and long before he arrived in his post. Just one of the facts that I have picked up is that in 2010 there were 152,791 Crown court cases, which took an average of 391 days to complete; in 2019, there were 107,913 Crown court cases, which took an average of 511 days to complete. Clearly, the Minister has his work cut out. We wish him well with it and will be happy to offer our contributions and advice along the way.
I also pay tribute to the Committee Clerks for their, as ever, first-class professionalism and support as we prepared for this Committee stage.
My final thanks go to stakeholders outside the House, including Justice, Fair Trials and Transform Justice, among others, for their energetic and constructive scrutiny and input, which have been of great assistance in identifying potential concerns about the Bill’s practical implications.
Given the amendments we have tabled—the first of which I shall speak to in detail shortly—it will be no surprise to the Minister that the Opposition have reservations about clause 3. However, we do very much recognise the need for, and indeed the benefit of, potentially moving some court processes online, so I will share our concerns in the hope that the Minister can provide reassurances to quell them.
The clause will create an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing. The Bill’s explanatory notes state that, to begin with, the procedure will apply only to offences involving
“travelling on a train or tram without a ticket and fishing with an unlicensed rod.”
It is critical to note that secondary legislation approved by the affirmative procedure may make additional offences eligible.
As currently drafted, the clause has limitations. For instance, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. Although we agree that these limitations, such as they are, are appropriate, there are a number of areas in which we think the safeguards built into the procedure need to go further.
The proposal to introduce online pleas was first made in the Prisons and Courts Bill in 2017. Transform Justice noted:
“It had not been subject to any public consultation then and still hasn’t.”
The assumption behind the clause, as with the expansion of written pleas, which we will come to in a later debate, is that a plea hearing is a straightforward and purely administrative hearing. It assumes that people will straightforwardly know whether they are guilty and will need no direction, assistance or support in pleading guilty to a criminal offence. I said earlier that this procedure is an online alternative to the single justice procedure, but there is an important difference. The single justice procedure allows defendants to choose to enter a plea in writing or online for the same types of offences that the automatic online conviction and standard statutory penalty will apply to—that is to say, summary or non-imprisonable offences.
Those who plead guilty and do not request a hearing under the single justice procedure are convicted and sentenced by a single magistrate on the papers before them, and the defendant has the chance to submit mitigating factors to inform the magistrate in writing. If a defendant fails to respond to the letter setting out the charge within the 21-day time limit, the single magistrate will hear the case without any input from the defendant or prosecutor. However, the Bill’s explanatory notes make clear that under the AOCSSP—is there a way of pronouncing that? I do not know—cases could take place entirely online and without the involvement of a magistrate.
Under the single justice procedure, the magistrate can decide that a case is not appropriate to convict under said procedure, which provides at least a minimal level of safeguarding within the process. However, under the AOCSSP, as Justice notes, there is
“no independent judicial (or indeed, human) oversight whatsoever. Moreover, defendants who use the AOCSSP procedure will face a binary choice, with no opportunity to submit mitigating factors if they plead guilty, unless they choose to decline”
the procedure and take the single justice procedure route instead.
The complete lack of human involvement in the process worries me. As a consequence, the Opposition have tabled amendments that seek to build into the process at least some level of safeguards. Although we agree completely with the Government that any online procedure should be optional, I also share Transform Justice’s scepticism, in that the defendant may not feel that they have much of a choice at all. How does the Minister think those pitfalls can best be communicated to the defendant?
The current introductory letter to the single justice procedure notice does not mention the option of pleading in court at all; it is only on page 3 of the following document that it comes up. To be honest, if I received one of these notices, even as the shadow Minister for such matters, I am not sure I would understand from the document that I had a genuine option to make my plea in a physical court hearing, rather than online or by post. Even when defendants understand that such a choice is available to them, I do not think that the information accompanying the note enables them confidently to make the best decision in their case. Some legal expertise is clearly required to know the benefits of pleading in court as opposed to pleading online. Again, I admit that even as the shadow Minister—I do not have any legal training at all; I am a journalist by profession—I would not be able appropriately to weigh the benefits of one course of action against the other. I hope the Minister understands what I mean. I am not trying to be obstructive or frivolous, but I think that the lay person receiving such a notice is currently not particularly well equipped to make a decision about their plea.
Transform Justice’s briefing calls on the Government to
“conduct and publish research on defendants’ understanding of the concept of viable defence and of mitigation, and of the factors to be taken into account in waiving the right to a ‘fair and public hearing’.”
That is an important point. The briefing also notes:
“The European Convention on Human Rights requires that in the determination of a criminal charge ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. It also guarantees specific minimum rights for those charged with a criminal offence, including the right to be informed of the nature and cause of the accusation, to defend yourself in person, and to have the assistance of an interpreter. The right to a fair and public hearing can be waived by the defendant, but only if they fully understand the charge and the implications of waiving their entitlement.”
Experiences of the single justice procedure suggest that many defendants will not fully understand the charges and the implications of waiving their entitlement to a public hearing. Research into such experiences could be an interesting and productive piece of work for the Department. I would welcome his thoughts on it, or, if his Department has considered the matter already, I would be grateful for more information about its work.
Another concern that has been raised about the expansion of the use of online pleas is that it may inadvertently drive an increase in the number of defendants without legal representation.
Janet Daby (Lewisham East) (Lab)
Given the significant changes that are taking place in how people plead—online, by post and so forth—does my hon. Friend think that the Government should conduct a public consultation? From what I have read, that is not happening.
Alex Cunningham
I am grateful to my hon. Friend for her intervention. She is correct, and she makes exactly the point that many of the people working in the sector are saying to the Government: we need better data and more examination of the data to drive the best legal system that we can possibly have.
There is a possibility that the expansion of online pleas may inadvertently drive an increase in the number of defendants without legal representation and, importantly, and as a consequence, worse outcomes for defendants. That concern was specifically raised by Transform Justice, which worries that encouraging defendants to plead online
“will lead to more defendants representing themselves … since the process of ‘doing it yourself’ may appear easy.”
I note that the current single justice procedure notice encourages the option of pleading online over the postal option. Pleading online, the defendant is told, is “quick and easy”. They are informed that they will receive a confirmation email, so that they know their plea has gone through—just like buying something from Amazon. The notice warns:
“You need to pay correct postage and allow enough time for delivery”.
That is helpful advice, but I worry that we are already seeing a push towards online pleas marketed as justice made easy for the defendant when that is not necessarily going to be the case. It may be easy, but it may deny them proper justice.
In fact, entering a plea can be a very complex decision. Transform Justice’s research on unrepresented defendants in the criminal courts found that entering a plea was one of the times when defendants without legal representation were most disadvantaged. As they note in their briefing,
“Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but also pleaded not guilty when the evidence against them was overwhelming, thus losing credit for an early guilty plea if convicted.”
I am aware that the explanatory notes to the Bill suggest that online pleas will be able to be entered only if the defendant has legal advice, and I understand that it is the Government’s intention that that would be done through the common platform. That would mean that the defendant would need to engage the services of a legal professional. However, I am concerned that that safeguard has not been put into the primary legislation. I will speak about that more fully in the debate on amendment 48 later this afternoon.
Even more worrying is the fact that paragraph 59 of the Bill’s impact assessment seems to suggest that that safeguard will be available only to those accused of more serious offences. As the Minister knows, the implications of a guilty plea, even for minor offences, can be significant, including a criminal record for life that can detrimentally impact employment prospects, among other things. I would be grateful for reassurances from the Minister that the online system will include information that ensures that the defendant is aware of all the possible impacts of choosing to enter a guilty plea. Again, I will speak to that point more fully in the debate on amendment 50.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
That’s not much, though, is it?
Alex Cunningham
That depends how much beer a journalist drinks these days; I think we used to put away many more pints than desk-bound journalists tend to now.
The process makes it easier for offenders to escape notice. [Interruption.] I hear the Minister acknowledge that that is the case and I look forward to hearing his proposals to ensure that we have the open justice we all strive for. He has said that he takes issues of transparency and open justice seriously, and I do not think this is an intentional consequence of the Government’s proposals, but it is potentially serious. Will he confirm that some measure of external scrutiny will still be possible under the AOCSSP? Will listings for all cases and their outcomes at least be made available to all? If not, it will be a serious blow to open justice.
I would be grateful for the Minister’s thoughts on the suggestion that the AOCSSP could form a barrier to effective participation in the justice system. As Transform Justice notes,
“All online conviction processes will start with a postal charge. These charges are sent through ordinary mail and there is no proof of their receipt”—
no proof whatsoever. It continues:
“The fact that two thirds of defendants do not respond by submitting a plea indicates that any criminal process which relies on defendants responding to a postal charge seems to present significant barriers to effective participation.”
Janet Daby
The postal charge raises significant concerns. I know of constituency cases where people have changed address and their benefit letter has gone elsewhere, so they have ended up with frozen benefits. There will be huge problems ahead if things are sent by post and end up in somebody else’s postbox, or if people move and do not receive letters. I am particularly concerned about people with mental health issues and vulnerable people who, even if they do receive a letter, may not be able to interpret it.
Alex Cunningham
My hon. Friend is correct and gives excellent examples. I had an example a few weeks ago of a constituent who found out that he was likely to be locked up because he had not paid his television licence. He had not received the letter because he was no longer at that address. I know that he had a responsibility to inform people that he had moved on, but the fact that nobody tried to find him before it got to the point of court bailiffs turning up at the previous property to take goods away to pay his fines and court costs is a nonsense. Clearly, that can happen.
Paula Barker (Liverpool, Wavertree) (Lab)
Does my hon. Friend agree that the Government’s equality impact assessment does not recognise the issues that he has eloquently raised about the postal charge?
Alex Cunningham
Almost certainly. Our hon. Friend the Member for Lewisham East talked about people with mental health problems or disabilities who are all disadvantaged by these proposals, because no adequate system seems to be in place to ensure that they properly understand what they are doing and what is happening to them. If they do not understand, they may choose to ignore it and end up with a conviction and a criminal record, which has terrible ramifications for employment and all manner of other things, including even entering another country. If they have a criminal charge against them, they may not be able to go on holiday to some countries.
Janet Daby
I find all this deeply concerning. I wonder whether the Government actually want the postal charge system to work.
Alex Cunningham
The last thing I expect from my hon. Friend is cynicism. I am sure the Government want the justice system to work correctly, so it is time they looked carefully at this. As I develop my arguments, I will talk about the need for research and data, which is absent. We have asked for it in the past, but no specific data exists on why people choose to ignore or do not even respond in any shape or form to postal charges.
We do not know why so few people respond to postal charges. It does not seem sensible to expand the use of postal charges until we have more data on the issue. One reason that has been suggested is that many defendants do not even receive the letter. I have already talked about that; it might be sent to an old address, for example. Perhaps the person does not even understand the letter that they have received. The defendant, as we have discussed, might have a mental health condition or a neurodivergent condition that presents a barrier to understanding.
Although phone calls for someone on benefits are now on a freephone number, the initial calls to the HMCTS assisted digital advice on how to fill in a physical online form are charged at local rates. Yesterday I received from the Minister the answer to a written question on support for some vulnerable defendants. I asked what training prosecuting authorities who use the single justice procedure, and who are not the CPS, receive on disability and neurodivergent conditions. The response stated:
“The Ministry of Justice is not responsible for training prosecuting authorities and thus cannot speak to whether they receive training on disability or neurodivergent conditions. In response to the Neurodiversity in the Criminal Justice System: A review of the evidence report, the Ministry of Justice is taking a whole system approach and are working with HM Courts and Tribunal Service, HM Prison and Probation Service, Home Office, Department for Health and Social Care and the Welsh Government to”—
here is the key word for me—
“consider neurodiversity training for all frontline staff within the Criminal Justice System.”
Surely, Minister, it should not be “considered”. It should be a case of deciding how we ensure that it happens and that people across the criminal justice system are fully equipped and trained to deal with people in these circumstances.
For people on low incomes, I worry that the proposals present a significant and unnecessary barrier to engaging with the process. Does the Minister have any thoughts on remedying that? Earlier I looked at the AOCSSP, which seems to disproportionately affect those on low incomes. In a normal court hearing and under the single justice procedure, defendants sanctioned with a fine are asked to state their means, to enable the judge to adjust the fine if necessary. Under the online conviction procedure, everyone would be made to pay the same fine, because there would not be any information on which to base a different decision.
I understand that the equality impact assessment suggests that defendants on low incomes will be made aware of the option to opt for an in-person hearing instead, so that their financial position can be taken into account. I have already spoken about my concern that defendants would not understand that there is a real choice to opt into an in-person hearing, so I am not sure that this is a sufficient safeguard for those on low incomes. Does the Minister have any thoughts on any additional safeguards to protect those on low incomes from being further disadvantaged, since that is identified in the Government’s own impact assessment? Under the AOCSSP, could it be made much clearer that it would be preferable for someone who needs their financial situation to be taken into consideration to opt for an in-person hearing? Is the Minister aware of any existing data relating to whether those who have pleaded under the single justice procedure and the automatic online conviction process have been the recipients of heftier fines than those who attended in-person hearings?
Another possible barrier to effective engagement could surface for defendants with disabilities. The Equality Act 2010 requires public bodies to make reasonable adjustments for people with disabilities. I struggle to see how the AOCSSP will be able to support the use of reasonable adjustments. The Bill makes no provision for screening to see whether defendants will need reasonable adjustments to be made. I will speak to that point more fully in the debate on amendment 57, but it is important to consider the issue briefly at this point. Under the current process for a single justice procedure, defendants are asked to tick on the form if they have a disability. What if their disability has prevented them from opening the letter or understanding the form? How does the Minister think we can address that barrier to participation?
Alex Cunningham
I am glad the Minister is pleased. The amendment would mandate the Secretary of State to commission and lay before Parliament an independent review of the potential impact of the AOCSSP on defendants and the criminal justice system, its efficacy and operational issues.
I have spoken at some length about the numerous concerns raised about the procedure, and sought the Minister’s reassurance on many of them. The most appropriate form of reassurance would be an independent report into the impact of the procedure. The procedure marks quite a significant shift in the way we handle criminal cases and would establish the principle for all summary and non-imprisonable offences to be automated through an online plea, conviction and penalty website. The Opposition recognise the need to explore how we can deploy technology in the criminal justice system, but we do not agree that it can be done without a robust evidence base, especially when we are dealing with changes that potentially pose a threat to defendants’ rights, access to justice and the principle of open justice.
As JUSTICE has noted, the evidence base for the procedure is poor and none of the reports that the Government refer to in the Bill documents—Sir Robin Auld’s 2001 “Review of the Criminal Courts”, Sir Brian Leveson’s 2015 “Review of Efficiency in Criminal Proceedings” and the Government’s own 2016 consultation, “Transforming our Justice System”—explores the real world consequences and risks inherent in the procedure. Furthermore, the 2016 Green Paper, in which the Government first proposed the introduction of an online conviction system, stated that the system should be using three offences before any decision was taken to make it permanent. It noted:
“We propose to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme, which would be: Railway fare evasion; Tram fare evasion; Possession of unlicensed rod and line. If this initial phase is successful, we plan to bring other offences, particularly certain road traffic offences, into the system in future.”
Andy Slaughter (Hammersmith) (Lab)
It does seem to be a bit of a feature of this Bill. When we were dealing with clause 2, we heard that the abolition of the Cart judicial review was to be a template for other offences, and the same is happening here. Does my hon. Friend agree with me that it is slippery slope? [Interruption.] I hear the Minister snorting from a sedentary position—
Andy Slaughter
Even with the offences my hon. Friend has named so far—offences in which honesty is a factor—it is very important that the questions that he is asking are answered before we approve the Bill, especially if we are to get the number of offences increased through secondary legislation.
Alex Cunningham
My hon. Friend is entirely correct. That is why we have tabled the amendment, which would require data and proper research to be conducted, so the Government have something by which to measure their success or otherwise in introducing the procedure. My real concern is that future offences may well just come through the secondary legislation route, where the amount of scrutiny is somewhat limited. The Government propose using the procedure in the Bill initially for these offences, but nothing in the Bill suggests that the testing procedure the Government committed to in 2016 will actually be used to assess the procedure. Can the Minister confirm otherwise? That would be welcome.
As Transform Justice has pointed out, there is no evidence in the public domain about the online motoring conviction system, which was introduced in 2015. There is no public access to the postal charge paperwork, nor to the online form. There is no public data on how many people respond to the postal charge—we covered that point already—or how many complete the form online. There is also no data on how many people plead guilty or not guilty, or on the sanctions received.
The Government consulted on the automatic online conviction proposal in 2016, and many of the respondents raised concerns. None have been allayed in the interim. Indeed, the single justice procedure, which the procedure builds on, had only been in use for one year when the Government consulted on the online procedure. Since then, much more information about the workings and indeed failings of the single justice procedure has come to light. The Government have not explained how the current issues with the single justice procedure would not simply translate across to the AOCSSP procedure, or even be exacerbated, given the removal of any human oversight. JUSTICE has also said that it is not aware of any similar system deployed in other jurisdictions from which any advantages or disadvantages could be studied.
For those reasons, the Opposition believe that amendment 45 is vital. Significant changes to our justice system should be evidence based, and making evidence-based decisions now will save the Government and the justice system a lot of problems further down the line. I appreciate that I have sought rather a lot of information from the Minister thus far, but we are very keen that we go down the route where we get it right. I look forward to hearing the Minister’s thoughts.
James Cartlidge
It is a pleasure to have you back in the Chair, Sir Mark, after your brief absence. That was a very important set of questions. Obviously, I am speaking particularly to amendment 45. Other amendments have been tabled to the clause and I think we will end up covering everything. I will try to answer the main questions, but hopefully by the time we get to stand part we will have broadly covered all the key questions.
I am grateful to the hon. Gentleman for his welcome, and wish the same to him. He has a different style and approach from the hon. Member for Hammersmith, but they make an interesting pair, and I look forward to further jousting and deliberations on the Bill. The hon. Member for Stockton North said that it is not all the pandemic. He is right: most of the difficult decisions about funding criminal justice had to be made in the 2010-15 Parliament. There is a good reason for that. It was not a pandemic; it was inheriting a catastrophic economic position because of the mismanagement of the previous Government.
James Cartlidge
I am talking about 2010. The hon. Gentleman knows full well that there is no parallel universe in which difficult decisions did not have to be made. Had Labour stayed in power in 2010, they would have made significant cuts to the Ministry of Justice. That is a fact, but we are here today and looking to the future, and the future is digital. Digitalisation offers many ways to improve and streamline justice, but of course we must ensure that safeguards are in place. I will come to a few of the specific questions, and then to the amendment.
Probably the most important question is what happens if the defendant does not receive notification of the charge or conviction. How will they respond? What do we do? We may be confusing two procedures. There is the single justice procedure, and there is the new procedure—I simply call it the automatic procedure. The hon. Gentleman is right: even the acronym is impossible to remember, let alone the full name. In the SJP, it is worth stressing that defendants who have no knowledge of proceedings brought against them via summons or requisition until after a magistrates court has begun to try the case will be able to make a statutory declaration to restart the proceedings—that is, for example, if the correspondence was sent to the wrong address. To reassure all colleagues, in the automatic procedure, the person considered has to opt in. If they do not receive notification, that procedure will not be used. It is fairly straightforward, and an important safeguard.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Can my hon. Friend confirm what would happen if somebody did not receive the post, the case went to court, and they were convicted in their absence? Could that happen, or would they have to be informed?
James Cartlidge
That is a very good question. To be clear, they have to opt in. If they received it and did not respond, they would not have been able to opt in. Therefore, the online procedure would not have taken place. I understand why my hon. Friend asks that question.
The previous Government consulted on this proposal from September to November 2016. The Government’s response in February 2017 to their consultation on transforming our justice system set out their intention to proceed with the new automatic online conviction and standard statutory penalty procedure, otherwise known as an acronym that I will not attempt, interesting as it is.
Open justice is a very important question. The hon. Member for Stockton North, as a former journalist, will very much respect the fact that matters of justice are of intense interest to the media and to journalists, and he is right that it is important in our democracy that we give them that access. We have to ask how much interest there would be in someone who has not paid a fine on an unlicensed fishing rod and so on, but to be clear, case information, including details of cases to be considered and outcomes, will be made available to the media and other interested parties in line with the criminal procedure rules.
The common platform is a very important question. There is possibly a slight confusion, which I can understand, as it is complex and there are lots of different clauses and procedures. Strictly speaking, in using the automatic procedure, the defendant is not using the common platform. It is a separate public-facing interface.
The common platform is used by practitioners and the criminal justice system. Clauses 6 and 8 relate to the common platform, because in those cases, the person would have to have legal representation because they could not enter, for example, an early plea online because it has to be done through the common platform and that has to be done through a practitioner. To be clear, there is a difference.
Alex Cunningham
I am interested in the issue of people having a day in court or saving a day off work. Many people will make the wrong decision when they come into contact with the justice system in that way. Is there not a real concern about individuals who do not know what they are doing, who may have mental health problems or other disabilities, and who cannot make the right decision? A day off work would not actually matter.
James Cartlidge
To be clear, I am not talking about a day off work. If they go into court, the issue is not having the income—for example, if someone is self-employed. It may be less of an issue for someone who is permanently employed; it depends on their contract. I think it is important for people to have the option, particularly if they are time poor. I stress that it is a choice.
Dr Johnson
What information will be provided in the letters when they are sent out, so that people can make the right choice? If the hypothetical plumber chooses to pay a fine, which may be less than the money that he would lose from missing a day’s work, he may think that he is financially better off because he is not going to court. Assuming that he is innocent, however, how will he get information about the consequences of the record? Will that be provided in the letters?
James Cartlidge
The answer is very simple. If the person concerned is innocent and pleads not guilty, the case is heard in court. This procedure is for people who are guilty and wish to plead guilty online to save themselves the hassle of going to court, given that they are guilty.
James Cartlidge
Hang on, there were simultaneous interventions. I will give way to the hon. Member for Blaydon.
Liz Twist
I wanted to address the issues in amendment 49 that we discussed at the evidence session with Justice, which is the class of case that will be dealt with through the system. I raise it now because the Minister is talking about the ease of going through the automatic procedure. Is he not concerned that people will be tempted to plead guilty just to get it over with, and will then find that they have a conviction? In my experience as a trade union officer, people accepted a caution because it got it out of the way, but then found that they had a criminal record that they had to declare to their employer.
James Cartlidge
It is a good question. I respect the hon. Lady’s background before she became an MP and she speaks with a lot of experience. These are non-recordable offences, such as not being in possession of a valid ticket on a train or tram or having an unlicensed fishing rod. They are all non-recordable, so they will not result in a criminal record.
I will amend what I said earlier to my hon. Friend the Member for Sleaford and North Hykeham. When I said “if a person is innocent”, I meant to say “if they intend to plead not guilty.” It is a semantic point but important to get right.
Andy Slaughter
I have a genuine question. If the provision is extended to other offences, is it the Government’s intention that any offences dealt with will be non-recordable in that way?
My hon. Friend the Member for Stockton North made some really thoughtful points, which the Minister is now addressing. What I am getting at is that the court appearance is a sort of framing event, and that can work both ways. First, it avoids trivialising the offence: it concentrates on it, is public and has the effect of exhibiting the offence to the wider world. Secondly, it acts as a way of thinking about where the offence is going—there may be legal advice, the court itself may be able to advise and the process of going to court may alter the defendant’s disposition. Has the Minister thought about all that and about the type of offences to which the provision might apply in future?
James Cartlidge
If I address that, I will be straying into the territory of future amendments. If the hon. Gentleman will forgive me, I should say that we will cover those issues in considerable detail.
I will now crack on with the remainder of my comments about amendment 45, which is about a review. I appreciate that this is a very new type of procedure for dealing with certain minor offences and that we cannot be certain of its impacts. However, we are committed to reviewing the operation of the procedure, which is why we are proceeding with caution.
Only three offences have initially been proposed for prosecution under the new procedure: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. As part of this initial implementation phase, we will carefully monitor and review the potential impacts of the procedure before we consider whether to extend it any further. The procedure has a number of safeguards, which I will set out in further detail when we discuss the next group of amendments and during the stand part debate. I want to stress that the procedure is entirely optional and that it will remain the defendant’s choice whether they wish to proceed with an automatic online conviction or opt for a traditional hearing in court.
Alex Cunningham
I am grateful to the Minister for his response and recognise that there are other issues to cover, which I mentioned in my speech; there are other amendments as well.
I am pleased to hear the Minister commit to carrying out a proper review of the procedure, as that is what the amendment sought. I see no need to press it to a vote. I thank him for his input and look forward to developing some of these issues during debates on the remaining amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 46, in clause 3, page 4, line 29, at beginning insert—
‘(1) Before this section may be commenced, the Secretary of State must publish—
(a) an equalities assessment concerning the impact the automatic online conviction and penalty process will have on individuals with protected characteristics, as defined in the Equality Act 2010; and
(b) an impact assessment on the effective participation for defendants with vulnerabilities, and must lay such assessment before Parliament.”
This amendment would mandate the Secretary of State to publish assessments regarding the impact of Clause 3 on individuals with protected characteristics as defined in the Equality Act 2010 before its commencement, as well as those with vulnerabilities.
The Chair
With this it will be convenient to discuss the following:
Amendment 47, in clause 3, page 4, line 29, at beginning insert—
‘(1) Before this section may be commenced, the Secretary of State must publish statutory guidance which sets out how prosecutors should provide and explain to defendants any information contained within the required documents in an accessible way.”
This amendment will mandate the Secretary of State to publish guidance for prosecutors on how to ensure that defendants fully understand the information provided to them.
Amendment 48, in clause 3, page 5, line 32, at end insert—
“(e) the prosecutor is satisfied that the accused has engaged a legal Representative”.
The amendment would provide that the accused cannot be convicted online via the AOCSSP procedure without legal assistance.
Amendment 57, in clause 3, page 5, line 32, at end insert—
“(e) the prosecutor is satisfied that the accused does not have any vulnerabilities and disabilities that impede the ability of the accused to understand or effectively participate in proceedings, having undertaken a physical and mental health assessment.”
This amendment would require that all accused persons considered for automatic online convictions are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
Amendment 50, in clause 3, page 6, line 6, at the end insert—
“(d) a document in clear and accessible language which—
(i) explains the consequences of agreeing to an automatic online conviction and penalty; and
(ii) directs the accused to legal advice and information.”
This amendment would include further information about the consequences of engaging with the automatic online conviction process and a signpost to legal advice within the required documents that are sent to the defendant.
Alex Cunningham
I thank Justice and Fair Trials again for their helpful input into these amendments. As a set, the amendments all deal with the need for safeguards in the procedure—we know the procedure that we are referring to—both by identifying possible issues before the procedure is used and by building in safeguards to the procedure itself. The Minister may think that he has covered the bases, but I want to help him to ensure that the belt and braces are in place, to best support justice.
Amendment 46 would mandate the Secretary of State to publish assessments on the impact of clause 3, before its commencement, on individuals with protected characteristics as defined in the Equality Act 2010, as well as on those with vulnerabilities. I have just spoken at length about amendment 45 and the need for the provisions in clause 3 to be well evidenced before they are implemented; amendment 46 addresses that point further. I am aware of the equalities impact statement, published alongside the Bill, which states that, in relation to the criminal procedures section of the Bill:
“we do not expect these changes to have a negative impact on any particular group, as the majority of these measures are designed to make the criminal court process easier for all court users by offering additional ways in which people can engage with the court that will significantly improve user experience and reduce user costs.”
Some may think that that’s all right then, but it certainly is not. The Government’s equality impact assessment deals with the impact of the procedure in two paragraphs and only discusses issues relating to income levels. However, there is evidence, predominantly from the single justice procedure, that suggests that the new procedure may disproportionately impact individuals with protected characteristics.
Stephanie Needleman, the acting legal director of Justice, shared such concerns with the Committee in the evidence session last week. She mentioned women as a group of concern, as the existing single justice procedure disproportionately targets women. APPEAL’s Women Justice Initiative notes,
“the vast majority of those being prosecuted and convicted of TV licence evasion are women.”
Its research shows what can happen in the absence of sufficient safeguards, with women facing criminal records despite not having received a letter, or where the letter was sent to the wrong address. Although there are issues that can affect anyone who receives a postal charge, the fact that women are more likely to commit certain so-called low-level offences means they are impacted to a greater extent. The Government’s impact assessment does not recognise that, and therefore does not suggest anything to address the issue. It is important that this disparity is recognised and is not replicated in this procedure. Stephanie Needleman he also raised concern about the potential impact on disproportionate representation of ethnic minorities in the criminal justice system, particularly as the new procedure has such minimal safeguarding built in.
The Opposition believe it is vital that further research is done to ensure that disproportionate numbers of ethnic minority individuals are not unduly criminalised through procedures that contain weaker safeguards than are currently provisioned under the single justice procedure. We are also concerned that the impact assessment makes no attempt to look at whether the new procedure will have a disproportionate impact on neurodivergent individuals or others living with mental health conditions and other disabilities. Justice’s report “Mental Health and Fair Trial” notes that criminal justice processes often do not account for an individual’s particular needs, which may hamper their ability to understand what is happening. This concern is then amplified within the single justice procedure where there is lack of opportunity to screen for health conditions or vulnerabilities and assess whether the process is suitable.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Gentleman is making a compelling case. I agree with a lot of what he says and I know the Minister will too, because he has been very sensible about the need to review this and consider it carefully before it is extended. In addition to the groups that the hon. Gentleman identifies, there are simply older people—people who do not have the wherewithal to navigate systems. They may not be people with mental health issues, although I take the point about that. They may simply be people who are not comfortable with online transactions. I would rather see far fewer things put online, by the way—I would like a move in the opposite direction in life and in the provision of public services generally, but the hon. Gentleman is not pressing for that; I am far more radical than him, I can tell. I hope he would include in his assessment, and I hope the Minister will too, those people who may simply struggle with online services.
Alex Cunningham
The right hon. Gentleman makes my case for me. I am most grateful to him. My dad is 90 and my mother is 88; she sadly has dementia but my dad still looks after her. As someone who is on the ball, I think he would really struggle in this sort of situation. I would not want that.
I am encouraged by the Minister’s very positive response to the first amendment. I am sure he is moving in my direction and I am very grateful. Perhaps when we come to a vote, the right hon. Gentleman will join me in saying, “Aye!” at the appropriate moment.
Alex Cunningham
Some might say he had gone a long time ago.
We are worried that the issue will only be further exacerbated by the new procedure, with the removal of any form of human oversight and involvement in the process at all. As I said in my earlier speech, the new process may represent a significant shift in our justice system as we look to increase the use of technology to maximise efficiency, but it is important that we do not take the step without knowing what it will entail for all types of defendants and place appropriate mitigations in place. The Government’s assessment further states:
“However, as is the case more generally across England and Wales, there is over-representation of certain people in the criminal justice system with protected characteristics”,
which will affect some of the proposed measures.
It sounds to me like the Government are simply accepting disproportionality as an inevitable consequence of our criminal justice system. That is simply not good enough, and that is why we want the Minister to go further with all these protections. It is also why the Opposition would like to see a more detailed equality impact assessment of clause 3 before it is commenced, as that will allow the Government to address the issues now rather than waiting until disproportionality is further exacerbated—when they say that they are committed to reducing it.
Paula Barker
Does my hon. Friend agree that not having the appropriate checks and balances in place, as the amendment suggests, could lead to further litigation down the line from those who are charged?
Alex Cunningham
Indeed, that is very much the case. The Minister talked about how a conviction made by a magistrate in the absence of a defendant can always be challenged down the line. I do not see where that fits with respect to this, and I hope the Minister will explain it.
I stress that I do not think that this is the ideal safeguard for identifying individuals with vulnerabilities—legal professionals are trained primarily in the law, not to identify issues relating to vulnerabilities. I have already said that that is not their responsibility and I do not want the Government to think that the Opposition are advocating placing that safeguarding burden on the legal profession. We are certainly not doing that. We are, however, in favour of more safeguards being built into the system. This is an important safeguard for all defendants, not just those with vulnerabilities.
As I said earlier, I am aware of the Government’s intention for online pleas to be entered via the common platform, which I understand might seem to address the concerns we express here. As it is not in the primary legislation, however, we do not feel sufficiently reassured, which is to say nothing of the ongoing issues with the common platform—I understand the senior presiding judge has told Her Majesty’s Courts and Tribunals Service to halt the roll-out until it has been stable for at least three weeks.
I appreciate that the Government have looked at the matter, but I want to ensure that this works in some way, even if we do not agree with the method. I would therefore welcome the Minister’s thoughts on strengthening the safeguards in the legislation.
James Cartlidge
I will come to the specific amendments, but, once again, some wider points have been made. An interesting one, made by my right hon. Friend the Member for South Holland and The Deepings, was about whether the broad thrust of policy should be somehow to regress towards being more paper based than online.
That was a serious point. It was interesting that, in evidence, Aidan O’Neill from the Scottish Law Society—I asked him about the Scottish experience of the pandemic and use of technology, although my right hon. Friend will know of other areas of his expertise—made some positive observations about how technology had in many ways enabled access to justice to be maintained during the pandemic, precisely because people who would otherwise not be able to appear in court or take part in tribunals or other cases were able to do so because of the technology.
My view is that, while we have to have safeguards—I therefore totally agree with the hon. Member for Stockton North that we should go through the details of the safeguards—in principle we should never discount the sense in which technology gives more access to justice. After all, a generation of people do not have printers—they work not off paper, but off their phone. They might even feel slightly excluded if they cannot do things online.
That might seem like a strange point and, as my right hon. Friend the Member for South Holland and The Deepings said, some older generations might find that extraordinary. To be clear, however, someone could be not even analogue, but completely paper-based in how they work. My parents are pretty much like that if I am completely honest. These offences obviously exist in the single justice procedure, which is paper based. Or, as I have said throughout, people could simply opt to have their case heard in court in the traditional way.
Sir John Hayes
I do not want to delay the Minister because I am keen to get on myself, but the point really is not so much the test of convenience, which is the one he is describing, or even the test of accessibility; it is more the absence of personal interaction. The problem with moving to technologically based systems, across the private and public sectors, is that we take people out of the equation, and actually people are the cleverest thing we have. They have imagination and intuition, and sensitivity and understanding. When we systemise things, we risk losing all those virtues. By the way, long before I came here, I was in the information technology industry, so I remember well knowing that then, just as I know it now.
James Cartlidge
My right hon. Friend makes a good point. There are some things that should always be done in person. A good example is parliamentary debates because we need interventions. When we had people appearing on a television screen, unable to intervene, how could we hold them to account for what they said? However, in the legal system—the Bill underscores this—some things must be done in person, and in respect of which the resource is so precious. Of course, we are talking particularly about trials in the Crown court, which are the most serious cases. A huge part of our focus is digitising relatively—I say that word carefully—straightforward or less serious procedures, so that we maximise at every turn the physical, in-person resource for the most important proceedings. That is important.
Before turning to the amendments, I will make one further point on the position of vulnerable defendants and give slightly more information, because this is a fair point. The procedure will operate in a similar way to the current written charge and requisition procedure, and the single justice procedure. Prosecutors using those methods of initiating proceedings have developed procedures for identifying those who may need additional support. Support channels will also be available to users who require clarification of information and processes ranging from web chat or telephone assistance to more intensive face-to-face assistance. The Department has recently awarded a new contract for significant support in that area, and I am happy to provide more information later.
Amendment 46 would require the Government to publish an equalities and impact assessment before the commencement of clause 3. When the Bill was introduced, an equalities assessment and an impact assessment were published on all the measures, including the new automatic online procedure. As such, we have already given consideration to the impact that the measure could have on those with vulnerabilities and protected characteristics, as the hon. Member for Lewisham East mentioned. We have recognised that the steps we are taking to digitalise criminal court procedures have the potential to affect groups that are less digitally enabled. That is why we will ensure that the online processes are easy to follow and understand, and that support channels, ranging from web chat or telephone assistance to more intensive face-to-face assistance, will be available to all defendants who might need them, as I said earlier.
The new procedure is completely optional, and it will remain the defendant’s choice whether they wish to proceed with automatic online conviction or opt for a traditional hearing in court. The number of disabled people using the internet is increasing, and defendants with certain disabilities might in fact welcome the introduction of a new online procedure, which will reduce their need to travel to court unnecessarily and enable them to resolve their case quickly in the comfort of their own home. As I say, the new procedure can improve access to justice in some respects. I agree that it is important to monitor its impact, including on those with vulnerabilities, and we will do so on the three offences initially before we consider whether to extend the procedure further.
Amendment 57 would require all defendants charged with an eligible offence to submit to an assessment of their physical and mental health before a prosecutor could decide whether it would be appropriate to offer them the option to proceed with the new automatic online procedure. The hon. Member for Stockton North made a reasonable case, and I share his concerns that the new procedure should only be used appropriately—that word is so important. As I think I said on Second Reading in my summing up, I am someone who is I would not quite say evangelical about, but strongly supportive of, using the internet to create efficiencies, improve access, increase productivity and ensure all those benefits; nevertheless, we have to have safeguards.
As I have already set out, that is why we have built a number of safeguards into clause 3. For example, a prosecutor will offer this online option to a defendant only once they have considered all the facts of a case and deemed it suitable for the procedure. All the options will be explained clearly to defendants offered the procedure, including their right to come to court if they wish to and the potential consequences of their choosing this route. Defendants who decide to opt into the new procedure will be guided through the process, and will have access to both telephone support and face-to-face support if they should need them.
Clause 3 also provides the court with the power to set aside a conviction in the event that the defendant did not understand the consequences of their decision to accept the conviction. The effect of the amendment may be to deter some people from using a procedure whose speed and simplicity they would otherwise welcome. Indeed, there would be no reason for defendants to opt for the new procedure if the resolution of their case would be swifter under existing procedures, such as the single justice procedure, where no mental or health assessment is required.
Amendment 47 would place an additional duty on the Secretary of State to publish statutory guidance before clause 3 could be commenced. As proposed, this would be guidance setting out how prosecutors should provide and explain to defendants any information in the required documents. Clause 3 already provides for guidance under the criminal procedure rules to set out the detail of how required documents should be served on a defendant offered the new automatic online procedure.
As I have said, under the procedure defendants will be provided with all the information they need to make an informed decision, and that will be written in a clear and accessible way. The information will include details of the evidence against them, the potential consequences of choosing this route and full details of the prospective fine. Similar information is already provided on the single justice procedure notice currently sent out to defendants, which is drafted and regularly reviewed in consultation with a wide range of user groups.
If it is helpful, I will be more than happy to provide every member of this Bill Committee, either by email or even through the post if necessary, a sample of the single justice procedure, to show how it looks. I think that once members see it, they will agree that it is very clear. It is similar to what will be used in the new procedure.
Amendment 47 would require all defendants to have engaged a legal representative before a prosecutor could offer them the option to proceed with the new automatic online procedure. I stress that only summary-only, non-imprisonable offences that are straightforward and simple to prove will be eligible for the new procedure. As such, we intend the design of the procedure to be simple enough to ensure that it can be used without legal assistance.
Defendants would need to opt in actively to the procedure and could choose at any point prior to accepting the conviction to have their case heard in court instead—when they wish to plead not guilty or want the court to consider mitigating factors, for instance.
Amendment 47 is unnecessary and would contradict current practice where, generally speaking, cases of this type do not normally attract legal aid and the vast majority of defendants already represent themselves, whether under the single justice procedure or in court. That is an important point to stress—[Interruption.]
The Chair
Order. I did make an announcement at the beginning about electronic devices, so I would appreciate it if you took cognisance of that. Thank you.
James Cartlidge
Thank you, Sir Mark.
This is a new procedure; it is a new means of realising whatever the outcome of a case is. It is not a new form of justice—let me be absolutely clear about that. People plead guilty or not guilty to these offences every day and in the overwhelming majority of cases there is no legal representation because the cases are straightforward. I accept the point made by the hon. Member for Stockton North, but I hope he is reassured by the fact that defendants will be advised of their right to obtain legal advice under the procedure and will be entitled to request a full trial and obtain counsel at any time during the process if they so wish.
Amendment 50 proposes to insert an additional level of detail into primary legislation, which I would argue is unnecessary. It would require the documents served on defendants to explain the consequences of agreeing to an automatic online conviction and penalty, and direct the defendant to legal advice and information.
We have already been clear that defendants will be provided with all the information they need to make an informed decision. That specifically includes making sure that they are aware of the consequences of entering a guilty plea and accepting a conviction. The notice and online process for the procedure will be very similar to the one for the single justice procedure, which clearly sets out the consequences of making a plea. As I have said, I am happy to send copies of the single justice procedure document to colleagues.
The notice that defendants receive formally commences proceedings for the offences and gives them a set period of time in which to respond. The notice will advise defendants to use this time to obtain legal advice. As I said before, only summary-only, non-imprisonable offences that are straightforward and simple to prove will be eligible under the new procedure. As such, we intend the design of the procedure to be simple enough to be used without legal assistance.
I hope that the hon. Member for Stockton North will be reassured by the fact that we intend to implement the procedure for a small number of offences to begin with and will carefully review how it operates before deciding whether to extend it any further.
Liz Twist
I welcome the Minister’s assurance that the procedure will not be extended. However, he has just mentioned that the offences to be considered under the procedure will be reviewed. Concern was expressed during our evidence sessions that the procedure might be extended to other offences, so what further reassurance can the Minister give on that issue?
James Cartlidge
I was just about to conclude, but I think I am due to cover that point in detail when dealing with the other groups of amendments. If I am mistaken, I will make sure that it is covered, but I think I will go into more detail about that issue later, if the hon. Lady will forgive me.
As I have set out, we already have the appropriate safeguards in place to ensure that defendants are fully informed of their options under the new procedure. These amendments are therefore unnecessary, and I urge the hon. Member for Stockton North to withdraw them.
Alex Cunningham
I am grateful to the Minister for his response. We have tabled these amendments because we want to be helpful—we are not trying to be difficult. We want to ensure that there is fair justice with fair access, and that justice is done for everyone at the end of the day.
I accept much of what the Minister said, but I still have real concerns about the information provided and the systems for providing that information. He has referred to what is included in the Bill, but I am still very concerned about how people will get the right information from the right person in order to make the correct decision, and I am most concerned about the vulnerable.
The other issue, raised by my hon. Friend the Member for Blaydon, is about what the next tranche of offences could be. Will we get to a point where more serious offences will fall under that process and will be recordable offences, which will have all the impacts on employment that we described earlier?
James Cartlidge
To be clear, I think the next amendment is very specific on that point, and I will definitely cover it.
Alex Cunningham
I am grateful to the Minister. On that basis, I will withdraw amendment 46, but will press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 47, in clause 3, page 4, line 29, at beginning insert—
“(1) Before this section may be commenced, the Secretary of State must publish statutory guidance which sets out how prosecutors should provide and explain to defendants any information contained within the required documents in an accessible way.”—(Alex Cunningham.)
This amendment will mandate the Secretary of State to publish guidance for prosecutors on how to ensure that defendants fully understand the information provided to them.
Question put, That the amendment be made.
Alex Cunningham
I beg to move amendment 49, in clause 3, page 5, leave out lines 33 to 35 and insert—,
‘(4) An offence may not be specified in regulations under subsection (3)(a) unless it is—
(a) a summary offence that is not punishable with imprisonment; and
(b) a non-recordable offence, which excludes any offence set out in the Schedule to the National Police Records (Recordable Offences) Regulations 2000/1139 (as amended).”
This amendment would exclude any offences which are recordable from the automatic online conviction option.
I come to the Opposition’s final amendment to clause 3, although we have already strayed into the territory that this covers. Amendment 49 would exclude any offences that are recordable under the new procedure. I understand that the Government intend the procedure to apply only to summary or non-imprisonable offences, but we think that this needs to be further restricted.
Examples of recordable offences that the new procedure could cover include the offence of failing to provide for the safety of children at entertainments under section 12 of the Children and Young Persons Act 1933 or the offence of exposing children under 12 to the risk of burning under section 11 of that Act. Others are the offence of drunkenness in a public place under section 91 of the Criminal Justice Act 1967 and the offence of selling alcohol to a person who is drunk, under section 141(1) of the Licensing Act 2003.
Particularly topical, given that the Police, Crime, Sentencing and Courts Bill is in Committee in the other place, are the offence of failing to comply with conditions imposed on a public procession under section 12(5) of the Public Order Act 1986 or the offence of failing to comply with conditions imposed on a public assembly under section 14(5) of the Public Order Act 1986. The threshold for committing these offences will become significantly lower upon the introduction of part 3 of that Bill, where individuals could inadvertently commit an offence by causing “serious unease” or “noise”. Yet more examples relate to the sale of alcohol to children under the Licensing Act and a range of football offences, including the use of missiles and the chanting of racist language.
Those are just some illustrative examples. I do not believe that these sorts of offences are really appropriate for the new procedure, mostly because, as I have mentioned in my earlier speeches––it is important, so I stress it again––the consequences of conviction can still be extremely serious. The Government’s apparent justification for removing any human oversight in the procedure is that it will apply only to minor offences where the defendant faces no risk of imprisonment. But as Fair Trials points out,
“The absence of the risk of imprisonment should not, on its own, be a justification for trivialising criminal justice processes. Criminal convictions, even for minor offences (other than certain types of traffic offences), can have far-reaching and very serious implications on people’s lives and opportunities. The existence of a criminal record can, for example, seriously undermine someone's chances of finding employment, especially in certain sectors and professions (including nursing, social care, child-minding and teaching), accessing educational and training opportunities, obtaining certain types of insurance, or the ability to travel to certain countries. For those who are non-UK citizens, criminal records can affect the right to remain in the country.”
The Opposition believe that it is crucial that the procedure applies only to those offences for which convictions are unlikely to have these impacts on individuals’ rights and opportunities.
Justice has noted that it is likely that the new procedure
“as it currently stands, would act to incentivise individuals to plead guilty out of convenience, regardless of whether they have an arguable case. Without legal advice, this risk is all the more profound [and]… many will not fully appreciate the impact a conviction could have on their lives and future prospects.”
By limiting the new procedure to non-recordable offences only, we would ensure that automated convictions are limited only to the most minor offences, which do not appear on most criminal record checks. That would be a vital safeguard in the online conviction procedure.
I do not think we will be overly limiting the use of the new procedure if we include that further limitation. Between 40% and 45% of all criminal offence convictions each year are for non-recordable offences, so a significant proportion of cases could still be dealt with. I look forward to hearing the Minister’s thoughts.
James Cartlidge
This interesting amendment covers some of the questions from earlier. Clause 3 provides that only certain non-imprisonable and summary-only offences can be specified as eligible for the new automatic online procedure. Amendment 49 would restrict it further to non-recordable offences. That is straightforward enough.
I reassure the hon. Gentleman that the initial three offences proposed under the new procedure—failure to produce a ticket for travel on a train, failure to produce a ticket for travel on a tram, and fishing with an unlicensed rod and line—are non-recordable offences. In fact, the vast majority of eligible offences in scope are non-recordable, with only a couple of exceptions. There is currently no intention to extend the procedure to any recordable offences. Once we have reviewed how it operates, we might consider extending to other similar non-recordable offences, such as certain road traffic offences—for example, low-level speeding and driving without insurance. Clause 3 enables us to do so.
However, for an offence to be appropriate, it would have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Prosecutors would also have the discretion, based on the individual facts of any given case, to not offer the option of the procedure for an eligible offence if they felt it would not be suitable. Furthermore, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations, which would have to be approved by Parliament.
Alex Cunningham
That was a very interesting response. I think the Minister was confirming that what is in the amendment will, in fact, be the case going forward and that the Government will not seek to introduce any offences that would be recordable in the scenario I described. I ask the Minister why he does not accept the amendment if that is the Government’s intention. I invite him to intervene on me.
James Cartlidge
That is very kind of the hon. Gentleman. In this situation it is very standard to have a Bill with what is effectively a pilot. I would not quite say that it is formally a pilot, but it is effectively trialling these three non-recordable offences and will be reviewed.
However, as I said, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations that would have to be approved by Parliament. That is a very standard way of operating. We think that is more flexible. I do not want to invite a conspiracy that says there is a clear plan to move very soon to including recordable offences. As I say, there is currently no intention to extend the procedure to any recordable offences. We think that this way of legislating is perfectly standard. The amendment is not necessary.
Alex Cunningham
I am afraid that although I accept that the Minister is an honourable man, I would like to see this measure nailed in legislation so that a future Government cannot start to introduce recordable offences. There is no guarantee from what the Minister said that that will not happen. New Ministers can change things. The amendment will ensure that they cannot go beyond the guarantee that the Minister has offered today, and I intend to press it to a vote.
Question put, That the amendment be made.
Damien Moore (Southport) (Con)
It is nice to see you back in the Chair, Sir Mark. I just want to make some quick remarks in support of clause 3 stand part. First, it is about speeding up the system and tackling the backlog, which we have and have all heard about in the course of proceedings on the Bill. It is important that we get to grips with the backlog. Using online technology to help to remedy it is, I think, incredibly important, but I do not think it should be the only way we do that. If someone does not want it or have it, that should be up to them. Representing a constituency with a higher-than-average-age population, I certainly understand the fears and concerns that my constituents have when we talk about putting things online, because they always feel as though they will not be able to access them, and accessing justice is incredibly important.
The offences that we are talking about are summary offences. As we have heard, the provision will be used only in a small number of cases, whether it is the non-payment of a train or tram ticket or the possession of an unlicensed fishing rod or line. These matters have to be dealt with, and the provision for automatic online conviction—no pun intended—allows that to happen going forward. I do not think a physical court is needed for justice. We have seen that in the course of the pandemic. We have to remember that technology, in all aspects of life, is not going to go away.
I also support the clause because the defendant can choose. They do not have to do this, and rightly so. It is something that people can opt in to; they are not forced to do it. These days, many people may actually feel more comfortable in the online environment than they would in the traditional one. Although they have committed an offence and are pleading guilty to it, that does not mean that we should cause them unnecessary pain and anguish through going to a court, which they might feel very uncomfortable with. We have to think about protecting them in every way we can, while punishing them for the crime that they have committed.
As my hon. Friend the Minister mentioned before, it is important, particularly for those who are self-employed, who might have difficult work circumstances or who might have childcare issues to be able to access justice in this way. The Minister has already mentioned a number of the safeguards that are in place, and I thank him for that. Access to justice and the need to go to court are two very different things. I am pleased that the clause recognises that and I am very pleased to support it. I think that all of my constituents will be very pleased that our access to justice is not impeded by just having to go to court.
Andy Slaughter
I will be brief, Sir Mark. This has been a very interesting debate, and my hon. Friend the Member for Stockton North has put forward some points that the Minister has engaged with. I am not sure that we are entirely happy with the responses. Disposing of matters online, without going to court, is a significantly different way to do things and makes a lot of differences. Some of the examples that my hon. Friend gave included the ability to get advice, the ability to monitor the quality of proceedings—including the way that the prosecution puts its case—the accountability of the defendant, and justice being done in public. Yes, it is more convenient in some cases to be able to deal with everything online in the way that most of our lives are dealt with now, but criminal proceedings are an important event. There are now many fewer courts than there were, but the process of going to court and appearing there is significant. It concentrates the mind, and it is an event. It frames the offence, and it makes the defendant think about the consequences of their actions.
What most concerns me is the point about open justice, which is very easy to lose. I am conscious that this afternoon the Justice Committee is taking evidence on the issue in relation to an inquiry done by the Bureau of Investigative Journalism in which it tried to attend possession proceedings, which are ordinary in-chambers proceedings that go on every day in dozens of civil courts around the country. On a number of occasions, it was wrongly refused permission to proceed by the judge or the administrative clerk of the court, which is an increasing trend. It has been exacerbated by covid, because clearly much more has been done remotely during the pandemic. That may have been necessary, but when were are making changes to procedure, it is important not to throw the baby out with the bathwater. It is important not only that justice is done, but that it is seen to be done.
I am not persuaded that the clause has been sufficiently thought through at the moment. Therefore, I will listen to what the Minister and my hon. Friend may say in relation to that, but although the Government are aware of, and concede, the points that have been made, I do not think they have done enough to put safeguards in place. At the moment, I feel that we are not sufficiently reassured about the clause.
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairmanship, Sir Mark.
I will move on from what I said this morning about dealing with my constituents. Again, I go back to what people say to me about these things on a daily and weekly basis: the law is only any good if it is enforced. The one thing that people see time and again is that somebody is caught in the act of doing something, yet it can take months to get them to court and to get them dealt with. That is bad for two reasons: it says a negative thing to law-abiding citizens, but it also means that charges are held over somebody’s head for a long time, which is no good. It is no good for people to have cases hanging over them. Punishment should be quick, cases should be dealt with, and people should move on very quickly, especially with small misdemeanours. The whole point of the clause is to clear the backlog in the courts. I have mentioned fly tipping, which is a real issue, and I know there have been backlogs with getting such offenders into court and dealing with them. The clause will expediate the court process and get swift justice to those who need it.
Before I was elected to this place, I got paid when I turned up to work. Other Members have referred to builders, plumbers and electricians, who do not have the luxury that a lot of people have. If they do not turn up for work, they can lose a day’s pay, which can be hugely costly to them, especially in these times. If they have made a small error, being able to deal with it very quickly online, maybe when they get in in the evening—saving them a day in court, which would increase anxiety for people—will be welcomed.
Alex Cunningham
I will be brief and will not repeat the points made by my hon. Friend the Member for Hammersmith on open justice and the requirement for safeguards. I have two points to make, which relate to our previous debate. First, although I feel my trust in the Minister building this afternoon as time goes on, sadly I do not trust a future Conservative Minister who may well decide to use the powers that the Minister is attempting to take to himself to do things that I would hope none of us would approve of, through having a series of online cases that could lead to recordable offences. That could have an impact on people’s lives. For that reason, it is important that we do not support the clause.
Secondly, there is the issue about the information that defendants have. The Minister was at some pains to point out what is already in the Bill. The fact that vulnerable people may not get the support, or not even be identified if they use this particular system, is of great concern. That is the second reason, in addition to those that my hon. Friend the Member for Hammersmith mentioned, why we will not support the clause.
James Cartlidge
Again, some very interesting points have been made. I was only appointed not much more than a month ago—
James Cartlidge
It is interesting to have two shadows at once—I should probably take it as a compliment. It is interesting that the hon. Member for Hammersmith said that he would wait until he had heard my remarks and those of the hon. Member for Stockton North before taking his position. I hope the hon. Member for Stockton North has persuaded his hon. Friend. It is an interesting position, but there we are.
My hon. Friend the Member for Southport gave a very good speech. As he said, the physical court is not needed for justice in many ways these days. Of course, it is still crucial for many aspects of law. The best example is those big Crown court cases with a jury. There is no getting away from that point. My hon. Friend the Member for Don Valley mentioned the backlog. It is absolutely crucial that we remember that by increasing the use of digitisation, we free up resource elsewhere, effectively streamlining through the whole system.
We are not saying that this measure alone will clear the backlog—of course it will not, that is absurd—any more than the 180 days taken by Cart judicial reviews would somehow of themselves be the silver bullet to solve the backlog. I was obviously not saying that. It is the accumulation. If, for example, using this procedure causes less pressure or fewer cases to be heard physically in the magistrates court, the magistrates court in turn can hear more triable either-way cases coming from the Crown court. The whole point is a process to reduce the pressure and free up space where it is needed most, which is in those crucial cases in the Crown court, where the backlog is most severe.
We have gone through the main points and the safeguards in great detail, so I am not going to speak at great length. This is about choice. If a defendant wishes to plead not guilty or otherwise decides that they wish to have a hearing in a traditional courtroom or their case considered by a magistrate under the single justice procedure, the current arrangements will apply. By introducing this new online process for dealing with the most straightforward and minor offences, the measure will save court time, allowing magistrates to focus on the more serious cases and help deliver swifter justice. That is the essence of our case.
I have one final point to make, which is important to have on the record. I thank the Scottish Government for their support for this measure and note the legislative consent motion that they have approved. However, the motion contained within it reserves clauses that in the Government’s view do not engage the legislative consent motion process.
Question put, That the clause stand part of the Bill.
Alex Cunningham
I beg to move amendment 51, in clause 4, page 9, line 34, leave out “16” and insert “18”.
This amendment would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18.
I will be relatively brief on clause 4, which extends the existing “pleading guilty by post” scheme in section 12 of the Magistrates’ Courts Act 1980. Under the provisions in the Bill it would apply to defendants who have been charged with a summary offence at a police station. If the defendant chose to make use of the written procedure, the court would then be able to try the case as if the defendant had pleaded guilty in court, but without the defendant—or the prosecution—having to attend. From 1957, when it was introduced, until 2015, the section 12 procedure was used by all police forces to prosecute mostly traffic offences, although it was also used for some other minor offences. Around 50% of all court cases were dealt with under it. Following the introduction of the single justice procedure in 2015, the section 12 procedure became relatively rare; it is still used for some cases that are not eligible to be prosecuted under the single justice procedure, for instance because the prosecuting body is not eligible to use it or there is a victim involved in the case. Given its current rarity and the limited likelihood of its future use now that the single justice procedure is available, I cannot really see the benefit, or indeed the point, of the extension of section 12, but the Opposition are not necessarily opposed to it.
Amendment 51 is straightforward; it would simply raise the age of defendant for which the procedure can be used from 16—that is, when the defendant is a child—to 18, when the defendant is an adult. I understand that under section 12, children aged 16 to 17 can be prosecuted in the youth court for summary-only offences under the section 12 procedure. Furthermore, under the same legislation, children under 16 can also be prosecuted for summary-only offences under the section 12 procedure, but only if there is an adult co-defendant in the case. However, I believe that the procedure has never actually been used in this way. Just because in 1980 it was decided the section 12 procedure should be able to apply to 16 and 17-year-olds, it does not mean that we have to extend that provision 40 years later. Just as the Government have decided not to extend the provision for children under 16 when there is no adult co-defendant, it could also remove 16 and 17-year-old children from the process altogether.
As it is drafted in clause 4(3), proposed new section (2A)(b) of section 12 allows for a magistrates court not only to accept guilty pleas from children aged 16 and 17 in writing, but to try, convict, and sentence them on papers. Following the accused child’s guilty plea, it would allow the court to sentence them at a court hearing in their absence. Other parts of the Bill, namely clauses 3 and 6, recognise that remote procedures are available only for accused adults—that is, those aged over 18—taking into account the fact that children need additional support and assistance to ensure effective participation. In addition, I understand that the provisions under clause 13, which mandate the involvement of a parent or guardian in proceedings involving a child, will not apply to the entry of a guilty plea by post by a 16 or 17-year-old under section 12. That also strikes me as odd, and I would be grateful if the Minister could clarify the reasoning behind it. To us, it is not clear why the threshold must remain at 16 for this clause.
James Cartlidge
I should point out for the record, as I spoke to him privately, that I did discuss that intervention from the Chair of the Justice Committee, and explained to him what I am about to explain now.
Amendment 51 would raise the age of eligibility for the section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18 years of age for cases where the defendant is charged at a police station. The section 12 procedure has been available as a suitable means of summary-only prosecution against defendants aged 16 and over since 1957, as I believe the hon. Member for Stockton North rightly said. I am not aware of that having raised any particular issues of concern for child defendants during that time. In a case where the defendant is summonsed or charged by post and intends to plead guilty, the section 12 procedure provides the option to do so by post rather than having to attend court. The subsequent hearing will still take place in open court and the defendant can still attend if they wish, so this is not about online procedure as such.
This procedure is primarily used for minor offences, such as driving without due care or littering, and has seen a sharp decline since the introduction of the single justice procedure. Once again, the hon. Gentleman noted that point. The purpose of clause 4 is to ensure that prosecutors can also offer that long-established procedure for suitable cases where a defendant is charged in person at a police station. That will maintain the same age criterion that exists for prosecutions initiated by summons or postal charges for 16 to 18-year-olds. Prosecutors will decide whether it is appropriate to provide a defendant with the option to proceed with the section 12 procedure, and summons and postal requisitions served on children will always be sent to their parent or guardian, which will include details about the section 12 procedure if it has been offered.
When a child is arrested and held in police detention, existing primary legislation also requires that a parent or guardian must be notified of that as soon as possible, and legislation will continue to enable a youth court to require a parent or guardian to attend during all stages of the subsequent proceedings at court where that is deemed appropriate. The amendment would create confusion by applying different rules to a well-established procedure simply because the defendant is charged in a different way. It also ignores the safeguards in place to ensure that the rights of children are protected. I therefore urge the hon. Gentleman to withdraw the amendment.
Alex Cunningham
I am grateful to the Minister for his response. I make no apology for always raising every issue in relation to children when the Government are trying to convert them into adults. There are many more serious examples of that in the Police, Crime, Sentencing and Courts Bill, which is going through in the other place. The Minister will not be aware of this, but I spoke at length in the Committee on that Bill against the creation of adults from children. While I accept what he says about this being a relatively minor example in comparison to elsewhere, it is important that the Government recognise that children are children, and not adults. I worry at times that we will see childhood further eroded in matters of justice going forward.
James Cartlidge
Just for clarity—this is what I explained to the Chair of the Justice Committee—I can quite understand that, at face value, it looks from the Bill as if this is uniquely being set at the age of 16 compared with the automatic procedure, which is set at 18. Of course, they are very different things, so I hope the hon. Gentleman appreciates that it is purely a consistency matter within a well-established procedure—although admittedly, within the Bill next to the other part, it is easy to see why these questions have been raised.
Alex Cunningham
That is exactly the reason why I will not push the amendment to a vote, but I make the point again that we cannot go forward in this country’s justice system moving more to converting children into adults when they are 16 or 17 years of age. I worry that we will see further proposals that will be far more damaging to young people in the future, so I will continue to prosecute this matter, and the Minister will get very bored of me over the coming months as I do so. In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
I will give a short exposition, because it is important to clarify the point that I emphasised in my last intervention. Section 12 of the Magistrates’ Courts Act 1980 is a long-established procedure, providing defendants with the option to indicate a guilty plea in writing to a summary-only offence. In such cases, defendants can also agree to be tried, convicted and sentenced to a fine at a court hearing, which neither they nor the prosecution have to attend. However, a magistrates court cannot impose a custodial sentence without bringing the defendant before the court. Nor can they impose a driving disqualification in the defendant’s absence without adjourning the case and giving the defendant an opportunity to attend a hearing.
Under the existing law, the procedure can only be applied to defendants whose prosecution is initiated by way of a summons or postal requisition. Clause 4 will change that, so that it can also apply when a defendant is charged in person at a police station and bailed to attend court for their first hearing. In circumstances, for example, where a defendant decides to plead guilty by post without having to attend the hearing, clause 4 also provides the court with a power to discharge the defendant from the need to surrender on bail. That means that prosecutors will be able to apply the procedure to suitable cases that would have otherwise been excluded simply because of the way in which the prosecution was initiated.
In all cases, opting to plead guilty in writing and be convicted and sentenced in absence will continue to remain entirely voluntary for defendants. The police and other prosecutors will continue to have the discretion to decide whether it is appropriate to apply the procedure to any case. Furthermore, all the current restrictions on the imposition of custodial sentences and driving disqualifications will still apply. Therefore, a defendant’s appearance at a traditional court hearing will always be available where necessary, or if the defendant desires it. Clause 4 is one of a number of measures the Government are bringing forward in the Bill to simplify criminal procedures and make our courts more efficient for its users.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Extension of single justice procedure to corporations
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss New clause 1—Review of the Single Justice Procedure—
“(1) Before the Commencement of this Act, the Secretary of State must commission a review and publish a report on the effectiveness of the Single Justice Procedure.
(2) A review under subsection (1) must consider—
(a) the transparency of the Single Justice Procedure in line with the principle of open justice,
(b) prosecution errors under the Single Justice Procedure and what redress victims of errors have,
(c) the suitability of the use of the Single Justice Procedure for Covid-19 offences,
(d) the proportion of defendants who do not respond to a Single Justice Procedure Notice and the reasons why defendants do not respond,
(e) the suitability of the Single Justice Procedure for people living with disabilities or neurodivergent conditions,
(f) the possible introduction of training for prosecutorial bodies who use the Single Justice Procedure on identifying and supporting individuals with vulnerabilities or disabilities.
(3) The Secretary of State must lay a copy of the report before Parliament.”
Alex Cunningham
We have already had a number of debates on our concerns about the extension of some of the powers. I have talked about the single justice procedure in detail, but it is now appropriate to give more direct and constructive criticism of that particular procedure. It is no good recognising the problems of the procedure in discussions of other clauses without any recourse to try to make improvements to the procedure.
I have become quite interested in the workings and failings of the single justice procedure in recent months, as I am sure the Minister is aware. I have raised my concerns with his predecessor at the Dispatch Box in Justice questions and requested a meeting with his predecessor to discuss the use of the procedure for covid offences, which the Minister’s private office has assured me is still in the works once his diary settles down a bit.
I thank Transform Justice, Fair Trials, and Big Brother Watch for the interesting and helpful briefings and discussions we have had on the topic in recent months, and I thank APPEAL and others who have researched and raised the alarm about elements of the SJP. For those who are not familiar with the procedure, APPEAL helpfully outlines it in its briefing “Conveyor Belt Justice”, which I will quote from at length to help Members better understand it:
“Summary offences which are not punishable with imprisonment may be tried by a single magistrate, with a legal adviser available, under what is known as the single justice procedure…Relevant offences include common assault and battery, truancy, non-payment of TV licenses and, from July 2020, offences under emergency Coronavirus legislation. Legal aid is not available to people charged with these offences.
In 2020, SJP prosecutions accounted for 47% of all criminal prosecutions in England and Wales.
Those prosecuted under the SJP receive a notice in the post and are asked to submit their plea within 21 days online or by post.
If someone receives a notice and does not respond, or if they respond and plead guilty, they are automatically convicted on the papers, in closed court. If no evidence is submitted of their financial circumstances, they are assumed to be able to afford the standard fine and costs, which can amount to hundreds of pounds.”
I am sure my fellow Committee members will agree that is a useful summary.
The new clause would require the Secretary of State to undertake a review of the single justice procedure and lay it before Parliament. The review would have to consider a number of issues with the procedure that have been raised by organisations working in the justice sector over the years.
The first issue the review would have to consider is how the SJP complies with open justice, which we knocked around a bit earlier in the day. In an earlier speech, I referred to the difficulties that Tristan Kirk has had accessing information on such cases. In its inquiry on covid-19 and the criminal law, the Justice Committee said that a lesson learnt from the use of the single justice procedure in relation to covid-19 offences was
“that the Ministry of Justice should review the transparency of the single justice procedure and consider how the process could be made more open and accessible to the media and the public.”
I know the Minister has commented on that, but I hope he can go a little further. The Opposition would echo that particular call. With almost half of criminal cases going through the procedure, the Government need to do more to ensure that justice is still seen to be done.
The second matter that needs to be looked at is prosecution errors under the SJP and what redress the victims of those errors have. In the last year, the error rate in the SJP was around 10%, according to a written answer that the Minister recently gave to my right hon. Friend the Member for Tottenham (Mr Lammy), in which he said:
“A review of Single Justice Procedure…cases dealt with between 1st September and 30th October 2020 showed that legal advisers and justices identified errors in 10% of cases. The errors are not caused by the type of proceedings; work done over the summer of 2020 suggested that the primary cause was the volume of regulations and the constant amendments, combined with the speed of introduction and the conditions in which officers issuing fixed penalty notices had to work. In the autumn of 2020, work was done with police forces and justices’ legal advisers to reduce the errors. Anecdotally, and from limited data, the error rate with the new round of SJP proceedings appears to be lower than last year. As the regulations ceased in the summer, the numbers of Covid SJP cases are set to decline.”
I share the Minister’s hope that the error rate will decline. An error rate of 10%, when almost half of all the criminal cases in the country are being dealt with under the SJP, is quite something. It certainly is not justice at its best.
James Cartlidge
The hon. Gentleman is engaging—he is an engaging fellow and I am engaging with him. I am more than happy to do that. I understand his request for a meeting. I would be more than happy to meet him to discuss some of the questions he has raised about the single justice procedure. If I do not answer them in my reply, I hope that we can go into them at that juncture. That is important.
The new clause would require a review and report into the effectiveness of the single justice procedure before the Act could be commenced. The single justice procedure is a more proportionate way of dealing with straightforward, uncontested, summary-only non-imprisonable offences, which almost exclusively result in a financial penalty. Previously in such cases, defendants tended not to engage at all and trials often went ahead without them. Many of these cases reach the court simply because the defendant has ignored other more informal ways of resolving the matter, such as a fixed penalty notice. We introduced this more accessible procedure as a way of encouraging defendants to engage with the court process.
It is a matter for prosecutors to decide whether it is appropriate to prosecute a defendant under this procedure, but various safeguards are built into the process. All defendants can veto the procedure and choose a hearing in open court. In addition, the magistrate can decide to refer the case to open court if they think that it cannot be dealt with appropriately using the procedure. Defendants who choose to use the procedure have access to support throughout the process, either by telephone or face to face. The single justice procedure written notice and online process have been designed with input from users and a wide range of organisations at public user events. Her Majesty’s Courts and Tribunals Service is constantly working to improve the documentation and has developed a clearer and more concise single justice procedure notice and information pack, copies of which I will share. That was recently piloted and is now being implemented.
There is a specific question relating to disability and accessibility needs in the form. To my knowledge, the single justice procedure does not in practice disadvantage any particular group. Defendants who choose to opt into the single justice procedure will be carefully guided through the process and will have access to both telephone and face-to-face support. For those who decide to proceed with a hearing, the necessary adjustments will be made at court in the usual way.
I am aware that concern has been raised that the single justice procedure lacks transparency. However, the criminal procedure rules oblige courts to give certain additional information on cases upon request from the media and other interested third parties. This applies to single justice procedure cases as well. To improve transparency arrangements, a list of pending SJP cases is published each day on a common platform that is available to the public online.
I am also aware that concerns have been raised about errors, as they were by the hon. Gentleman. Errors can occur in any system and there are processes in place to correct them. I am not aware of any evidence to suggest that the error rate is higher under the single justice procedure than under ordinary court procedures. As with all types of cases that magistrates courts deal with, if an error is made by the court, whether upon conviction or sentence, the court will always notify the defendant and correct it, following the case being reopened. Similarly, the defendant has the automatic right of appeal to the Crown court against conviction and sentence. If a defendant was unaware of the proceedings, they are entitled to make a statutory declaration that revokes the conviction and recommences the proceedings.
Given the safeguards in place and our commitment to continually review and improve the single justice procedure processes––
Alex Cunningham
The Minister appears to be coming to the end of his remarks and I want to press him on the unlawful convictions under the coronavirus legislation. Is the Department moving to ensure, or at least to encourage, proactivity in getting these people’s convictions removed?
James Cartlidge
One reason that I am more than happy to meet is that we can go through more detail. There are a range of issues here that I would need to discuss with the hon. Gentleman.
On the new clause, I can see no reason for a formal evaluation and certainly not one that would delay the implementation of all provisions in the Bill. I therefore urge the hon. Gentleman to withdraw the new clause.
Clause 5 makes it clear in law that the single justice procedure can be used to prosecute legal persons such as corporations as well as individuals. Often, corporations are charged with offences that are suitable for the single justice procedure, such as lorry overloading. The clause ensures that a corporation can benefit in the way that an individual can from the speed and convenience of having such cases dealt with under this procedure.
Alex Cunningham
I appreciate the Minister’s response on new clause 1. We can all accept that the SJP is not perfect. We are trying to persuade him of the need to look at data and consider how well it is working, when it is not working and where the problems are. I have illustrated where I think some of them are. The Minister is only a month into his role and is doing a grand job so far. It is important that these issues are explored and not just shoved to one side. I am grateful for his offer to meet and I am sure that will happen.
I will just make one final point on transparency. It needs to be better. There are some good things happening already, but the Minister recognises that transparency is an issue and I look forward to seeing the changes that he might make in the future. I have already covered the issue of unlawful convictions.
Andy Slaughter
Listening to this debate, I am reminded that I was on the Bill Committee when the SJP was first introduced. A lot of these concerns were raised at the time and the fact that we are still talking about them now means that there is some way to go. It should also make us wary about further innovations that could compromise justice being done openly, as happened before.
I mentioned the investigation today and it has provoked the Master of the Rolls to write to all civil judges to remind them about the importance of allowing media access. Recently, we have seen the head of the family division taking very important strides to open up family courts, which have often been a closed book for so long.
We should be doing more to encourage open justice and therefore I think we should be aware of these issues. I fully support what my hon. Friend has said in relation to these matters and his caution, even if he trusts the Minister more than I do.
Alex Cunningham
I am grateful to my hon. Friend for those comments. Sometimes, it seems that we end up talking about the same things in every single Bill Committee when it comes to justice. I remember well the days on the Legal Aid, Sentencing and Punishment of Offenders Bill Committee, when my hon. Friend was leading for the Opposition. There were so many places where we felt that more information or data needed to be recorded to ensure that the justice system was working correctly.
However, as I said, on this occasion I am content not to press the new clause, and I look forward to working with the Minister in the future.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Written procedure for indicating plea and determining mode of trial: adults
Alex Cunningham
I beg to move amendment 52, in clause 6, page 11, line 10, at end insert—
“(c) the court has been provided with a physical and mental health assessment of the accused confirming that the written procedure will not impede their ability to understand or effectively participate in proceedings”.
This amendment would require that all accused persons whose cases are considered for the written or online procedure are subject to a health assessment, and only those who are considered not to have vulnerabilities or disabilities are able to indicate their pleas remotely.
The Chair
With this, it will be convenient to discuss amendment 56, in clause 6, page 18, line 5, at end insert—
“(4) The Secretary of State must, before the changes to the written procedure for indicating plea and determining mode of trial are introduced, conduct a pilot in two police force areas to evaluate the impact of the changes on effective participation in the justice process. The evaluation should include—
(a) the proportion of defendants with disabilities affected by the changes;
(b) the impact on the effective participation of all defendants including those with disabilities; and
(c) the effectiveness of reasonable adjustment measures”.
This amendment would require the expansion of online pleas and online indication of pleas to be piloted in two areas of England and Wales, and the pilot evaluated with published results, before any further changes are introduced.
Alex Cunningham
Clause 6 adds new sections to the Magistrates’ Courts Act 1980 that enable defendants to engage with the plea before venue and allocation procedures in writing, rather than in court. The new sections apply in cases involving a defendant aged 18 or over who has been charged with an either-way offence. This effectively creates a new pre-trial allocation procedure, whereby an individual will be able to indicate a plea in writing for all summary-only, indictable-only and triable either-way cases. This would remove the need for a defendant to attend an allocation hearing in person, as is currently required. The provisions under the clause are not mandatory and a defendant could attend a physical hearing if they wished to do so.
As with other measures in the Bill, the Opposition are not necessarily completely opposed to clause 6, but we need further reassurance from the Minister and possibly amendments that would introduce safeguards into the procedure. That is because, as the Minister will be aware, deciding how to plead and deciding where a case may be heard can have significant consequences for a defendant. One example would be if a defendant chooses to proceed to the Crown court in a triable either-way offence. They may receive a harsher sentence than in a magistrates court, because of the greater sentencing powers of the Crown court.
Decisions regarding plea and the venue of criminal trials are crucial ones that determine the course of the trial and have serious implications for the rights of the defendant, which can be extremely difficult to reverse. Fair Trials states:
“In particular, pleading guilty amounts to a waiver of the accused’s right to a trial, and all the defence rights that are related to trial processes. Although the Bill purports to enable accused persons to only make an ‘indication’ of their plea, which can later be revoked, Fair Trials has doubts that many defendants would do this, unless they benefit from effective legal assistance.”
I will speak further about legal assistance when we discuss amendments 53, 54, and 55.
Fair Trials goes on to say:
“Moreover, the right to a public hearing with the presence of the accused person is of fundamental importance not only to the defence, but also to the public. First appearances in court are crucial stages of the criminal justice process, where important decisions regarding criminal cases and the rights of the accused are made. Clause 6 will mean that many of these hearings will effectively take place in secret....it is crucial that there are sufficiently strong safeguards to ensure that defendants entering their pleas online, or via written procedures make adequately informed decisions.”
The Bar Council believes that hearings that involve indicating plea and determining mode of trial should remain as in person. It explained in its briefing ahead of Second Reading:
“Moving to a written procedure would ultimately impede access to justice for defendants who are often vulnerable due to a range of additional needs, and a disproportionate number of whom (relative to the overall population) have literacy issues, and some of whom may not speak or read English as a first language… Any criminal charge is serious, an either way offence self-evidently so. Moving to a written procedure for an indication of plea and mode of trial increases the probability of defendants, even if entitled to legal advice, suffering a disadvantage. Consequently, there is good reason to question the fairness of such written procedures and we do not believe therefore that it would be in the overall interests of justice or efficiency to adopt such a new approach... Further, the early plea and mode of trial hearings are some of the most procedurally complex in the criminal justice system. In order to ensure that defendants are able properly to navigate the various issues which such hearings present, it is essential that they are able to secure representation at the moment at which they are required to make—and inform the court of—key decisions.”
The Bar Council also referred to the crucial role that criminal solicitors and junior barristers often play in the magistrates court in referring vulnerable defendants to support services that can offer them help. That possible moment for intervention is clearly lost when such hearings are no longer in person.
That is a serious catalogue of concerns levelled against the clause. I appreciate that it is not the Minister’s intention to cause those potentially extremely adverse consequences, but the reality is that potentially many thousands of defendants will face those and suffer worse case outcomes.
The Opposition understand the concerns and share the reservations of Fair Trials and the Bar Council, but we first seek assurances from the Minister that appropriate safeguards will be put in place. Amendment 52 would require that all accused persons whose cases are considered for the written or online procedure are subject to a health assessment, so that only those who are considered not to have vulnerabilities or disabilities are able to indicate their pleas remotely. That is for the same reasons that I outlined in my speech on amendment 57 to clause 3, so I will not rehearse all the arguments again. We are again concerned that the Bill does not address the risk of vulnerable defendants indicating pleas with insufficient knowledge and understanding of the implications. We therefore seek some form of screening safeguard to be put in place.
Amendment 56 would require the expansion of online pleas and online indication of pleas to be piloted in two areas of England and Wales, and the pilot evaluated with published results, before any further changes are introduced. Transform Justice’s briefing notes suggest that
“encouraging online pleas could act as a driver to lack of legal representation, worse outcomes, and exacerbates efficiency issues encountered later in the justice process such as difficulties obtaining full disclosure from the prosecution.”
The Equality and Human Rights Commission said in its briefing that the provisions for pleas in writing
“risk the ability of people with certain protected characteristics to effectively participate in criminal proceedings”.
Given those serious concerns about the impact of the proposals on effective participation in the justice process, the changes should be piloted in two police force areas and an evaluation of the costs and impact of the changes, including on disabled people, should published before wider roll-out is considered. I am interested to hear what safeguards the Minister has considered for the new allocation procedure for adult defendants. As I have said, plea and allocation hearings can have major impacts on case outcomes, and I am sure he agrees that it is vital that we get the procedure right before it is rolled out across the country.
James Cartlidge
The amendments relate to vulnerable defendants using the provisions in clause 6 that allow adults to indicate a plea online. To be clear, I share the concern of the hon. Member for Stockton North to ensure that vulnerable defendants, including those with disabilities, are able to engage effectively with online procedures. That is why we have built a number of safeguards into all the criminal procedure measures in the Bill, including this one.
Amendment 52 would ensure that a court cannot invite a defendant to indicate a plea online unless it has been provided with a physical and mental health assessment indicating that the online procedure will not impede the defendant’s ability to effectively participate in proceedings. It will be a matter for the court, in any case, to decide whether it is appropriate to invite the defendant to indicate a plea online before their first hearing. Not all defendants will be offered the option of engaging with the court online before their first hearing, and the courts will do so only where they consider it appropriate. Defendants will be under no obligation to accept an invitation to proceed online and can choose to discuss these matters at a traditional court hearing if they so wish.
Where a defendant fails to engage online, the proceedings will simply default back to existing court-based procedures. Those who do choose to indicate a plea online will be given information about the procedures available, how they work, the consequences if followed, and the need to obtain legal representation. They will only be able to enter a plea and allocation decision through their legal representative. As they do currently, legal representatives can help to identify if the defendant has any vulnerability that would mean that they cannot understand the process. Furthermore, any online indication of plea will remain just that—an indication. A defendant will be able to withdraw it. They still have to appear before a court to enter a binding plea where the court will be able to assess the extent to which they are making an informed decision. The court can set aside earlier steps in proceedings where it decides that a defendant has not made an informed decision when indicating a guilty plea online, and that indication of guilt cannot then be admitted as evidence against them in later proceedings.
Amendment 56 would require a pilot of the online indication of plea procedure to be undertaken and evaluated before the procedure is implemented to assess the impacts on defendants and, in particular, vulnerable defendants. I share the concerns of the hon. Member for Stockton North about impacts on defendants but do not agree that a pilot is necessary. We have undertaken an equality impact assessment and have built a number of safeguards into the online procedures to protect vulnerable defendants. As with all criminal procedures, the operation of this new procedure will be closely monitored by the Criminal Procedure Rule Committee. I have already set out the safeguards we have built into these procedures so that defendants will not be disadvantaged by engaging with the court in this way, and to ensure that any impacts are positive in minimising the stress of having to attend court unnecessarily. I therefore urge the hon. Gentleman not to press the amendments.
Alex Cunningham
The crux of this matter is the defendant making an informed decision. The Minister referred to that. Coupled with that is the need for appropriate legal advice. The Minister also alluded to that. I do not know how we ensure that the person understands that they need to seek legal advice before participating in this process. However, given what the Minister has said, I am content and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 53, in clause 6, page 11, line 10, at end insert—
“(2A) Subsection (3) only has effect where a magistrates’ court is satisfied that the accused has engaged a legal representative, who is responsible for responding to the charge and giving any written indication of plea.”
This amendment would mean that defendants must be legally represented in order to indicate a plea in writing.
The Chair
With this it will be convenient to discuss the following:
Amendment 54, in clause 6, page 11, line 29, after “plea” insert “and consequences of pleading guilty”
This amendment will require that an accused person informed about the practical consequences of pleading guilty, such as gaining a criminal record and what that may mean for the defendant.
Amendment 55, in clause 6, page 11, line 36, at end insert—
“(4A) The prosecutor must obtain proof of receipt by the accused of the information outlined in subsection (3)”.
This amendment would require prosecutors to obtain proof of receipt of the information relating to written pleas sent to defendants.
Alex Cunningham
Amendment 53 would mean that defendants must be legally represented in order to indicate a plea in writing. As I said in my previous speech, early plea and mode of trial provisions are among the most procedurally complex in the criminal justice system. The Opposition therefore agree with the organisation Justice that, as a minimum safeguard, defendants must have the opportunity to receive legal advice and assistance prior to indicating a plea or trial venue. Allocation decisions can currently be taken at court with the assistance of a duty solicitor.
As Justice set out in its 2016 response to the Government consultation, “Transforming Our Justice System”, in a physical court there is a network of informal assistance available for people that can help explain procedure and guide towards legal assistance where necessary—from the usher, to the justice’s clerk, the barrister waiting for their case to be called, or the magistrate if the case appears before them. This informal assistance can act as an important safeguard and support mechanism for those going through the often difficult and confusing process of being engaged in our justice system, and would be unavailable, on the face of it, for those able to engage in the new allocation procedure remotely.
The Opposition welcome the clarification from the Government, in the courts fact sheet accompanying the Bill, that defendants will
“not be able to access the online procedure for indication of plea or trial venue allocation decision directly”,
because submissions would be made through the common platform, for which defendants
“will need to instruct a legal representative to act on their behalf who will of course ensure they fully understand the process and will be able to identify any vulnerabilities.”
I am glad that the Minister recognises how crucial legal support and advice are for decisions concerning whether to indicate a plea before venue and deciding where the case should be heard, either in a magistrates court or the Crown court.
James Cartlidge
The amendments would all add further safeguards to clause 6, which allows adults to indicate a plea online. As I have said, I share the concerns of the hon. Member for Stockton North that defendants can engage effectively with online procedures. In the previous group of amendments, I set out the numerous safeguards included in the provision, which also apply here.
Amendment 54 would require that defendants who are given the option to provide an online indication of plea for an either-way offence are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. The hon. Member for Stockton North is right that the prospect of a criminal record is not something that should be taken lightly. Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea. I must stress again that this is an indication of plea and is not binding. That means that a defendant will have to appear at a subsequent court hearing to enter a binding guilty plea before they can be convicted. The court will need to be satisfied that the defendant has made an informed decision.
Defendants will also be able to withdraw an indication of guilty plea, and that previous admission of guilt cannot be used against them. They will require a legal representative to engage online, who I would fully expect to explain the serious implications of pleading guilty at court and getting a criminal record. If the courts decide that it would be appropriate to provide any additional information to defendants invited to plea online, the legislation enables this to be done under the criminal procedure rules. The Criminal Procedure Rule Committee was created by Parliament precisely for the purpose of making detailed rules of procedure for criminal courts in a flexible way. Delegation to the Committee is widely accepted as appropriate for this sort of secondary legislation.
Amendment 53 would provide that a court cannot invite a defendant to indicate a plea online unless the court is satisfied that the defendant has engaged legal representation. It is our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. As I have said, they will already require legal representation in order to indicate a plea online. That is because the online procedures are made possible through the common platform, which is not accessible to defendants.
Amendment 55 would require prosecuting agents, such as the Crown Prosecution Service, to obtain proof that a defendant had received all the necessary information sent to them by the court about the new written procedure for indicating a plea online for an either-way offence. There are already procedures in place to ensure that information is sent by the court securely and to the correct correspondence address of the intended recipient. These procedures will continue to be followed as normal. I appreciate that there may be occasions when an invitation does not reach the recipient, but that will not disadvantage any defendant. After all, it is up to a defendant if they want to provide an indication of plea online. If they do not—because they choose to ignore the invitation or never received it in the first place—the proceedings will simply begin, as they do now, at the scheduled first hearing. The absence of a response will not be held against them.
I remind the hon. Member for Stockton North that it is also our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. They will need to do so in order to indicate a plea online. Their legal representative will be qualified to ensure that they understand the procedure, have all the information they need to make an informed decision and understand all the consequences that come with it. It would be disproportionate and inefficient to mandate the prosecutor to obtain proof of receipt for each and every invitation that was sent by the court, especially when we have all these safeguards in place, paired with the fact that some defendants will have absolutely no intention of engaging online, opting for a traditional first hearing instead.
Alex Cunningham
I have a simple question about receipt of the charge. Through the post office, people can have a recorded delivery and actually sign for a letter. Why are the Government resisting that? They would know that the person had definitely received the charge, because there would be a signature saying that they had.
James Cartlidge
There are pluses and minuses to that approach. To repeat the point I made earlier, if they never received the notice in the first place, the proceedings would simply begin, as they do now, at the scheduled first meeting. In that sense, there is not a fundamental difference. I think I have covered all key points on this group of amendments and I urge the hon. Member not to press them.
Alex Cunningham
I will not detain the Committee long. I listened carefully to what the Minister said about doing everything possible to make sure that the defendant accesses legal support. I would prefer to see that on the face of the Bill to make sure that it definitely happens, so I will push amendment 53 to a vote but not press amendment 54 or 55.
Question put, That the amendment be made.
James Cartlidge
I beg to move amendment 1, in clause 7, page 18, line 10, leave out lines 10 to 20 and insert—
“(1) This section has effect in the circumstances set out in section 17A(7) (indication of not guilty plea by accused at hearing), 17B(2)(d) (indication of not guilty plea by accused’s representative at hearing) and 22(2B) (scheduled offence found at hearing to be triable either way after indication of not guilty plea).”
This amendment and Amendments 5, 6, 7, 10, and 11 remove drafting inconsistencies to do with the applicability of section 17BA of the Magistrates’ Courts Act 1980 as inserted by clause 7.
The Chair
With this it will be convenient to discuss the following:
Government amendments 5 to 7, 10 and 11.
Clause stand part.
James Cartlidge
This group contains minor and technical amendments to clause 7 and schedule 2 to the Bill, as well as the clause stand part.
When a defendant indicates a not-guilty plea to a triable either-way offence at magistrates court, the court must embark on the allocation decision procedure to establish whether the case should be tried in a magistrates court or at the Crown court. The sequence of this procedure is dictated by primary legislation and currently means that if the court decides that a summary trial at magistrates court is suitable, it must have deliberated and reached that decision before asking the defendant if they want to overrule it and elect for a jury trial at Crown court instead. Sir Brian Leveson, the former president of the Queen’s bench division, highlighted the inefficiency of the current sequence in “Review of Efficiency in Criminal Proceedings”, stating:
“The allocation procedure could be conducted more quickly if the defence was invited to indicate at the outset if the accused intends to elect Crown Court trial.”
Clause 7 will provide defendants with the opportunity to elect for a jury trial at Crown court before the court embarks on the allocation decision procedure. It will help to save valuable court time and resources by ensuring that time is not spent considering the suitability of a case for summary trial where the defendant intends to elect for jury trial in any event. The Government amendments to the clause are minor and technical in nature, and amend the drafting to ensure that clause 7 can apply consistently in all suitable circumstances. They will have no practical effect on policy.
Amendment 1 agreed to.
Clause 7, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Judicial Review and Courts Bill (Seventh sitting)
Tuesday 16th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 November 2021 - (16 Nov 2021)
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Committee divided: - Ayes: 5 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 5 - Question accordingly agreed to.
The Chair
Good morning. I remind Members of the advice offered with regard to social distancing and suchlike that we have heard many times before.
Clause 8
Written procedure for indicating plea and determining mode of trial: children
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
Good morning, Mr Rosindell. The sun shines on the Committee. This is a sunshine clause, not necessarily a sunset clause, but it is an important one. The criminal age of responsibility in England and Wales is 10 years old, which means that children aged between 10 and 17 can be charged with a crime and prosecuted in court. The majority of children’s cases are dealt with in our youth courts, which are specifically designed to provide for the additional needs and vulnerabilities of children. In addition to specialist youth courts, there are bespoke procedures and processes that apply to criminal proceedings against children. That is why we are legislating for online plea and allocation for children under a separate clause, which recognises the distinct youth justice system that exists for them.
Clause 8 will help to avoid unnecessary hearings by giving children the option to provide an online indication of plea for offences that may require a subsequent trial allocation decision. Where the indication is not guilty, the clause will enable the court to deal with the allocation decision online. Like adults, children will need to have a legal representative to proceed with the new online procedure, which will be available only through the common platform. The purpose of the clause is to reduce the number of times that children, and their parents or guardians, have to travel to court. It will allow for case management of the pre-trial stage of cases to take place outside of a courtroom so that children have to attend court only for trial and sentencing hearings.
Courts will need to provide such defendants and, where appropriate, their parents or guardians with information explaining the written procedure, the choices available to them and the effects of those choices. Where a child provides an indication of a plea online, courts will have to ensure at the first court hearing that the child has understood their decision and confirms their written indication of plea before proceeding any further with the case. As with any case involving a child, when dealing with preliminary matters in writing or online, courts must continue to have regard to the current overarching statutory duties to prevent children from reoffending, and to have regard to their welfare.
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Mr Rosindell. As the Minister said, the clause creates a new pre-trial allocation procedure similar to that of clause 6, whereby an individual would be able to indicate a plea in writing for all summary-only, indictable-only and triable either-way cases, but this time it is for children. Thus far on the criminal procedure changes in the Bill the Opposition have tried to work with the Government’s proposals to find a workable solution through amendments; however, that is not the case with clause 8, as we believe that it is wholly inappropriate for remote proceedings of this kind to be used in cases with child defendants. The law rightfully affords children additional protections and safeguards to reflect their inherently vulnerable nature, and propensity to plead guilty notwithstanding the evidence or potential defences, as shown, for example, in the evidence-based Justice Lab report on incentivised legal admissions in children.
The Minister outlined the theory of what will happen with this set of measures, but sadly the implementation of it could prove to be very different. The Bar Council opposes the provisions too, saying:
“We do not accept that a written procedure for indicating plea or determining mode of trial in the case of children will do anything other than impede access to justice for the most vulnerable cohort of defendants within the criminal justice system.
It has long been the position of the Criminal Bar Association and the Bar Council that the prosecution of children and young people requires wholesale overhaul to ensure that they only enter into the criminal justice system as a very last resort, if diversion and other interventions are unsuitable.
Representation of children and young people, and the courts that administer youth justice, need to be properly funded, regulated and restructured in order to be fit for purpose.”
The Bar Council goes on:
“At present, these courts are not fit for purpose, and all too often act as a gateway for vulnerable youths into more serious offending. It follows that moving to a written procedure will compound the situation, limiting the opportunities for lawyers working under a legal aid system to meet with vulnerable defendants and their families, signpost interventions by other appropriate agencies and identifying children and youths with additional needs. It will also impede the child and youth’s understanding of the seriousness of the process into which they have entered.”
I very much agree with the Bar Council’s assessment. There is much wrong with the youth justice system, and the provisions of this clause would exacerbate the existing issues rather than do anything to improve them. I would also like to seek further clarity on whether the provisions of this clause would allow online pleas for children, which would be seriously concerning. I emailed the Minister about it last week, and he responded with a note from officials. However, I wonder if he could provide some more specific guidance about it on the record.
Although it is not within the Bill itself, paragraph 181 of the explanatory notes states:
“Clause 8 inserts new section 24ZA of the MCA 1980 that enables a child or young person under 18 years who is charged with a triable either-way offence to be provided with the choice to indicate a plea in writing/online, without the need for a youth court hearing.”
We are opposed to the introduction of a written procedure for indicating plea or determining mode of trial in the case of children in any way, but have even stronger objections to an online procedure being introduced directly for them.
I share the concern of the Equality and Human Rights Commission, which says:
“The Commission is concerned that children as young as ten could be engaging with the criminal justice system through an online process insufficiently adapted to their needs and with minimal engagement from a parent or guardian. Children are already more likely to struggle to understand and engage with legal processes. Youth Court hearings provide an important opportunity to respond to the specific and additional needs of children. This is particularly important in light of recent evidence indicating that children are more likely to enter a guilty plea when they are not guilty.”
While the Bill provides that a parent or guardian should be aware of proceedings where they take place online, the Opposition are not convinced that that is sufficient to mitigate against the risks posed to children. As the EHRC briefing notes:
“The law currently provides that, where a child under sixteen is charged with a criminal offence, a parent or guardian must attend all proceedings save where it would be unreasonable to require them to do so. For cases where a plea is entered by a child under sixteen in writing or any part of the proceedings is to be conducted on the papers, the Bill only requires the court to ascertain whether a parent or guardian is aware that proceedings are taking place and where necessary provide that information.”
That is in new section 34A(1B) and (1C) of the Children and Young Persons Act 1933.
Janet Daby (Lewisham East) (Lab)
My concern about children above 10 years old being able to make an online plea is that when children use a computer and everything is very much virtual, it is a different level of interaction and can seem like a game. I agree with my hon. Friend’s point that their understanding of the process or their experience of making an online plea will be of a less serious nature. I also support his view that children are more likely to say that they are guilty because they are used to apologising, or they want to get out of the situation quickly. This is not the appropriate way forward.
Alex Cunningham
Yes, computers may be learning tools for children, but they are also their game world. Those of us who have families or grandchildren know that to be very much the case. It is so easy to press buttons and tick boxes, and I am really concerned, as is my hon. Friend, that young people may well think, “Let’s take the easy way out. Let’s just tick the box, and let’s get this over and done with. Then I can forget about it.” Unfortunately, they cannot forget about it, because they can end up with a criminal record, even if they are not guilty of the offence of which they have been accused. That is all the more reason why we need to review this clause in some considerable detail.
Of course, the issues applying to children under 16 do not apply to 17-year-old children. Furthermore, article 40(2)(b) of the convention on the rights of the child sets as a minimum standard the right that a child hearing be held in the presence of legal or other appropriate assistance and, unless not in the best interests of the child, his or her parents or legal guardian. In addition, the UN Committee on the Rights of the Child recommends
“that States parties explicitly legislate for the maximum possible involvement of parents or legal guardians in the proceedings”.
This clause does the direct opposite. We do not believe that it makes adequate provision to protect the rights of children in the justice system. It is not appropriate that the important safeguards that exist for children should be watered down in that way through the provisions in clause 8. As such, we will oppose the inclusion of the clause in the Bill.
James Cartlidge
I appreciate where the hon. Members for Stockton North and for Lewisham East are coming from, in the sense that of course we have to be careful in matters involving children. It is fair to point out, however, that these are not revolutionary changes of procedure. In my view, there will certainly be cases where, particularly for vulnerable people, the online environment is more suitable in many ways, because after all they will have legal representation.
I will explain clearly exactly what the clause does, what the safeguards are and where the discretion lies, to try to ameliorate some of the concerns. At the moment, there would be the plea before venue and allocation decision procedures for children of 10 to 17-years-old, which can be completed only at a court hearing. The Bill enables those procedures to be completed in writing online via the common platform without the need for a hearing, as is clear.
On the safeguards, defendants will need a legal representative to proceed with online plea and allocation. That is an important safeguard that will remain firmly in place due to the accessibility restrictions created by the common platform and the stipulations in secondary legislation under the criminal procedure rules. Courts will need to provide information explaining the written procedure, the choices available to defendants and the effects of those choices. If a defendant fails to engage with an invitation to proceed in writing or online, the court will default back to a traditional first hearing. Clause 13, which we will come to, applies with regards to requiring and enabling the court to ascertain whether the parent or guardian is aware, and if they are not, to provide them with the relevant information.
Finally, in terms of discretion, it is the defendant’s discretion to proceed with online indication of plea and allocation in writing or online, so they can still have a traditional hearing. It is also the court’s discretion to withhold or disapply online indication of plea and allocation in writing, if it thinks that is appropriate in the circumstances. There are significant safeguards in place.
It means that we will have greater consistency, but I accept what the hon. Member for Stockton North is saying, which is why we have been keen throughout the debate on these clauses to stress the important safeguards and discretions that exist. I hope that, on that basis, hon. Members can support the clause.
Question put, That the clause stand part of the Bill.
James Cartlidge
I beg to move amendment 2, in clause 9, page 22, line 34, at end insert—
“(1A) In section 17B (power to proceed with indication of plea hearing in absence of disorderly but represented accused)—
(a) for the heading substitute “Power to proceed if accused does not appear to give indication as to plea”;
(b) for subsection (1) substitute—
“(1A) This section has effect where—
(a) a hearing is held for the purposes of section 17A,
(b) the accused does not appear at the hearing,
(c) any of the conditions in subsections (1B) to (1E) is met, and
(d) the court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.
(1B) This condition is that a legal representative of the accused is present at the hearing and signifies the accused’s consent to the court’s proceeding in the accused’s absence.
(1C) This condition is that—
(a) a legal representative of the accused is present at the hearing, and
(b) the court does not consider that there is an acceptable reason for the accused’s failure to attend.
(1D) This condition is that—
(a) it is proved to the satisfaction of the court, on oath or in such manner as may be prescribed, that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before its date, and
(b) the court does not consider that there is an acceptable reason for the accused’s failure to attend.
(1E) This condition is that—
(a) the accused has appeared on a previous occasion to answer the charge, and
(b) the court does not consider that there is an acceptable reason for the accused’s failure to attend.
(1F) This section also has effect where—
(a) a hearing is held for the purposes of section 17A,
(b) the accused appears at the hearing,
(c) the court considers that by reason of the accused’s disorderly conduct before the court it is not practicable for the hearing to be conducted in the accused’s presence, and
(d) the court is satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.”;
(c) in subsection (2), for the words before paragraph (a) substitute “If a legal representative of the accused is present at the hearing—”;
(d) after subsection (4) insert—
“(5) If no legal representative of the accused is present at the hearing—
(a) the court is to proceed in accordance with section 18(1), and
(b) the accused is to be taken for the purposes of section 20 to have indicated that the accused would (if the offence were to proceed to trial) plead not guilty.””
This amendment allows a magistrates’ court to proceed if an accused person does not appear at the “plea before venue” hearing in a wider range of circumstances (equivalent to those provided for in relation to allocation hearings by clause 9(3)).
The Chair
With this it will be convenient to discuss Government amendments 3, 4, 8 and 9.
James Cartlidge
I have tabled these amendments to correct some errors in the Bill, which would prevent this measure from having the desired impact. When it comes to triable either-way offences, the procedures for plea and allocation are invariably completed in immediate succession of each other in the same court hearing. The primary purpose of clause 9 is to enable the court to complete preliminary pre-trial proceedings in the absence of a defendant in a wider range of circumstances than the law currently allows. That will help to ensure the timely progression through the criminal justice system of cases that would have otherwise stalled indefinitely where a defendant deliberately disengaged.
As currently drafted, clause 9 does not afford the same extended set of circumstances to proceed in absence for the plea procedure as there will be for the subsequent allocation procedure. That will in effect act as a legislative roadblock that prevents the courts from being able to make use of the new powers that clause 9 provides. Therefore, these amendments will ensure that the court has the same powers to proceed in the absence of a defendant for both the plea and the allocation decision procedures. Where the court decides that it is in the interest of justice to proceed in a defendant’s absence, it will be assumed that the defendant has pleaded not guilty, and the court will allocate the case for a trial.
A further amendment rectifies a drafting error in clause 9 to ensure that it remains consistent with current law, whereby there is no requirement for the presence of a legal representative when a court decides to proceed with allocation, having removed a disorderly defendant from the courtroom.
These amendments will allow the clause to work as intended, maximising the benefits for the criminal justice system. Clause 9 will continue to ensure that the court cannot proceed in absence unless it is satisfied that it is in the interests of justice to do so.
Alex Cunningham
I thank the Minister for his explanation of the need for a raft of amendments to his own Bill.
Clause 9 will introduce additional circumstances in which the magistrates court could continue with the proceedings in the defendant’s absence in triable either-way cases. This applies to adults, and there are similar provisions for children. I will speak on our general concerns in the debates on the Opposition amendments.
I again thank Justice for its assistance in highlighting potential concerns in this area. Currently, the Magistrates’ Courts Act 1980 provides that the process for triable either-way cases begins with a plea before venue, where an adult defendant is required to appear in a magistrates court to indicate whether they wish to plead guilty or not guilty. Thereafter, if the defendant pleads not guilty or refuses to state a plea, the case proceeds to the allocation hearing. That involves deciding whether the case should be tried in the magistrates court or the Crown court. The defendant is required to be present for both the plea before venue hearing and the allocation hearing. However, in both scenarios there are two circumstances where the court can proceed in the defendant’s absence: where the defendant has legal representation and the court considers that, by reason of the defendant’s disorderly behaviour, it is not practicable for the proceedings to be conducted in their presence—the legal representative will of course act on the defendant’s behalf—or where the defendant gives consent via their legal representative for proceedings to take place in their absence.
Clause 9 would introduce additional circumstances where the magistrates court could proceed with the allocation proceedings in a defendant’s absence in triable either-way cases. In its current form, the Bill does not introduce any changes to the way plea before venue hearings are conducted for triable either way cases. In addition to the two existing circumstances that I have mentioned, clause 9 would empower the magistrates court to now proceed and allocate the case without the defendant’s input in cases where the defendant does not engage in writing or does not appear at their hearing without an “acceptable reason”, provided that the court is satisfied that the defendant has been properly served. The allocation decision would be made on the basis of an assumed not guilty plea—the Minister said that—and the court would proceed to allocate the case to the magistrates court or Crown court. Defendants, however, will continue to have an opportunity to elect for a trial in the Crown court until the start of the summary trial.
Government amendment 2 will now allow a magistrates court to continue with the proceedings in cases where the defendant does not appear at the plea before venue hearing in a wider range of circumstances. The circumstances mirror those proposed for allocation hearings as set out in clause 9(3), including where a defendant does not appear at the hearing without an acceptable reason. The amendment proposes changes to section 17B of the Magistrates’ Court Act 1980, which currently empowers magistrates courts to proceed with the plea before venue hearing
“in the absence of a disorderly but represented accused”—
one of the two exceptions to the general rule mentioned earlier.
However, the amendment does not include any requirement for a defendant’s legal representative to be present, which is currently provisioned in the Bill for the allocation hearing, although the Government propose removing it through amendment 3. A number of other circumstances in which the plea can go ahead in the defendant’s absence also do not require the defendant’s legal representative to be present.
Janet Daby
Does my hon. Friend agree that children in particular are vulnerable, and that they should always have legal representation in any plea or pre-plea situation?
Alex Cunningham
I most certainly do. My hon. Friend knows that I will talk about children in the justice system forever, if I need to. It is absolutely critical that they are given every support. Not every parent is capable of offering the appropriate advice, so it is very important that legal representation is in place, in particular in the absence of parents.
Although the Bill previously expanded the circumstances in which an allocation hearing could take place in the defendant’s absence, it at least required that where the defendant was absent due to disorderly conduct, their legal representative would need to be present for the hearing to continue. However, the amendment removes the need for their legal representative to be present; instead, it empowers the court to proceed with the allocation hearing in cases where both the defendant and their legal representative are absent. I do not at all see the need for the removal of that important safeguard, and the Minister’s comments thus far have not convinced me. I wonder how many cases he expects those provisions to be used for.
Government amendment 4 would allow a magistrates court to move straight to the allocation stage if, under the provision inserted by amendment 2, it decides at the plea before venue stage to proceed in the absence of the accused or their legal representative, without needing to consider the merits of the proceedings in the absence of the accused. The court could therefore proceed with an allocation decision in the defendant’s absence, in which case the defendant would be deemed to have indicated a not guilty plea. Justice states that the amendments represent
“a significant alteration of the status quo”,
which permits plea before venue hearings and allocation hearings in the absence of the defendant only for reasons relating to the defendant’s disorderly conduct, or where the defendant consents via their legal representative to proceedings taking place in their absence.
The Opposition share Justice’s concern that clause 9 as a whole—especially with the Government amendments—may remove essential safeguards put in place for the accused’s effective participation in the proceedings, and instead prioritise alleged court efficiency over a defendant’s right to a fair trial. I do mean “alleged” court efficiency—as I will discuss in our next debates, I have concerns that some of the measures the Government are seeking to introduce to improve efficiency may in fact have the opposite effect. I am concerned that the Government amendments would expand the scenarios in which the court could proceed in the absence of a defendant’s legal representative at both the plea before venue stage and the allocation hearing.
I really do not understand why this is at all necessary. Plea and allocation decisions can have significant consequences for an individual and their liberty. It is right that every effort be made to ensure that defendants are properly engaged in their proceedings. The Minister knows that we are all too keen to support the Government in improving the efficiency of our courts, but it is important that the measures we introduce have a genuine evidence base and are not obviously detrimental to the rights of defendants and due process, and I think these amendments would fail both criteria.
The Opposition want an efficient court system every bit as much as the Minister does. However, I worry that if we get it wrong the measures will have the opposite effect. That said, we will not oppose the amendments at this stage, but instead will offer the Government an opportunity to improve the clause through our own series of amendments, to which I hope the Minister will be as accommodating as we have been to his.
Amendment 2 agreed to.
Alex Cunningham
I beg to move amendment 80, in clause 9, page 23, leave out lines 15 and 16 and insert—
“(b) the accused has given a reason that the court does not consider to be an acceptable reason for their failure to attend”.
This amendment would ensure that the defendant is given the opportunity to provide a reason for their non-attendance and avoid the court speculating as to what that reason might be.
The Chair
With this it will be convenient to discuss the following:
Amendment 81, in clause 9, page 23, leave out lines 22 and 23 and insert—
“(b) the accused has given a reason that the court does not consider to be an acceptable reason for their failure to attend”.
See Explanatory Statement for Amendment 80.
Amendment 82, in clause 9, page 23, leave out lines 27 and 28 and insert—
“(b) the accused has given a reason that the court does not consider to be an acceptable reason for their failure to attend”.
See Explanatory Statement for Amendment 80.
Amendment 83, in clause 9, page 24, leave out lines 36 and 37 and insert—
“(e) the accused has given a reason that the court does not consider to be an acceptable reason for their failure to attend”.
See Explanatory Statement for Amendment 80.
Alex Cunningham
I begin by thanking Justice for its detailed briefing on the clause, which was extremely helpful for identifying potential issues of concern. As the Minister has outlined, clause 9 introduces additional circumstances in which the magistrates court can proceed with the allocation proceedings in a defendant’s absence in triable either-way cases. That applies to adults, and the clause contains similar provisions for children. A magistrates court would now be able to proceed and allocate the case without the defendant’s input in cases where the defendant does not engage in writing or appear at their hearing without an “acceptable reason”, provided that the court is satisfied that the defendant has been properly served.
The allocation decision would be made on the basis of an assumed not guilty plea and the court would proceed to allocate the case to the magistrates court or the Crown court. Defendants, however, will continue to have an opportunity to elect for a jury trial until the start of the summary trial. That would represent quite a significant expansion of current practice, which only permits allocation hearings in the absence of the defendant for reasons relating to the defendant's disorderly conduct—we have discussed that already—or where the defendant gives consent via their legal representative for proceedings to take place in their absence.
I note that the Law Society expressed some concern with the clause. In its Second Reading briefing, it said:
“If the court decides the defendant’s case should be tried in the magistrates’ court, the defendant will only subsequently be able to elect a jury trial if the court agrees that it would be in the interests of justice to reopen the question of the mode of trial. This would effectively result in the defendant losing their right to a jury trial without their consent. In our view a defendant should only lose the right to elect a jury trial if they have expressly waived that right.”
Will the Minister outline a couple of illustrative examples of he imagines a magistrate would consider it in the interests of justice to reopen the matter of allocation, so we can understand how stringently it is intended to be imposed?
Justice also considers clause 9 to be problematic for three reasons. First, it is concerned that the measure would significantly impair the ability of defendants to engage in their proceedings. It notes that
“At present, the defendant has a right to choose the trial venue in cases of triable either way offences. Clause 9, however, empowers the Magistrates to determine the trial venue in cases of triable either way offences in the defendant’s absence, where the defendant does not engage in writing or appear at their hearing without an “acceptable reason”, for which no definition is provided in the Bill or in the Explanatory Notes.”
I agree that it is therefore difficult to assess how it would operate in practice when magistrates would be given a wide discretion to proceed and allocate the case in the defendant’s absence. Indeed, if a defendant has not appeared at the allocation hearing and has not been able to instruct or inform their counsel as to the reason for their non-appearance, it would be impossible for the magistrates to know whether an “acceptable reason” exists or not. Moreover, should the magistrates allocate the case to a court that is different from the one the defendant wants, that could result in the case returning to the allocation stage: they could make a statutory declaration under the Magistrates’ Court Act 1980, stating that they did not know of the summons or the subsequent proceedings. That would result in both being void. As Justice explained,
“This will cause delays and additional expenditure of resources, contrary to the aim of this provision, which is to ‘provide the court with an important means of progressing cases which would otherwise stall creating uncertainty and lengthy waiting times’.”
I would welcome the Minister’s thoughts on that point. We certainly do not want to pass measures aimed at increasing efficiency in the system if they will have the opposite effect in reality. In an attempt to avoid those issues, the Opposition have tabled amendments 80, 81, 82 and 83, which all do the same thing, and together would ensure that the defendant was given the opportunity to provide a reason for their non-attendance and avoid the court speculating as to what that reason might be. I am also interested to hear whether the Minister has any further thoughts on how such speculation by the court can otherwise be avoided.
James Cartlidge
The hon. Gentleman has asked some very good questions. I accept that these are important points, so let me try to clarify some of them.
The hon. Gentleman asked about the statistics. We do not have precise data on failure to appear, and particularly about prediction of failure to appear in the context of these powers. The majority of defendants prosecuted for triable either-way offences who are sent to Crown court for jury trial are sent there by a magistrates court, rather than by the defendant electing. In 2019, magistrates courts sent 32,262 defendants to the Crown court for a jury trial; of those they decided not to send, 5,277 defendants elected for their case to be sent to be tried by a jury at the Crown court.
In 2019, of the 250,387 adult defendants scheduled to appear at magistrates court for a triable either-way offence, 41,968 defendants had a recorded outcome of failing to appear. However, as the hon. Gentleman will appreciate, it is extremely difficult to predict how this clause will affect those figures. Regarding the circumstances in which the decision could be revisited, to be clear, where a defendant has no knowledge of the proceedings brought against them through a summons or requisition until after a magistrates court has begun to try the case, they will be able to make a statutory declaration and restart the proceedings from the beginning, providing adults with another opportunity to elect for a jury trial.
The hon. Gentleman has tabled amendments 80, 81 and 82 in order to ensure that adult defendants are given the opportunity to provide a reason why they are not attending an allocation hearing, and to avoid the courts speculating as to what that reason might be. Amendment 83 would extend the same opportunity to children. The whole point of clause 9 is to give the courts powers to deal with defendants who deliberately delay proceedings and try to evade justice in a wider range of circumstances. These amendments would achieve the opposite by preventing the court from progressing cases in the absence of any communication from the defendant who has not attended. If no reason is given for the court to consider, the case simply cannot progress.
Sir John Hayes (South Holland and The Deepings) (Con)
I listened to the Opposition spokesman, and it seemed to me that he made a persuasive case. However, a few moments ago, the Minister introduced an important addition to this discussion in the form of a safeguard. He said very clearly that the accused could restart the whole process if they were not aware of the circumstances, so it seems to me that the people the Minister is describing who are malevolent or malign—who are deliberately trying to frustrate justice—will be caught by this clause, but those who are not will be protected by the safeguard. Perhaps the Minister should amplify or accentuate that safeguard, because it seems to be exactly what the Opposition spokesman was asking for.
James Cartlidge
My right hon. Friend, who is an expert on amplification, makes an excellent point. He is entirely right: there are safeguards—as with any safeguards, they are there to protect those who have been subject to inadvertent circumstances. They are not there to allow those who have deliberately avoided justice to do so: that distinction is absolutely crystal clear and important. My right hon. Friend has hit the nail on the head, as it were.
Alex Cunningham
I appreciate the Minister’s explanation outlining again the safeguards in place. I do not believe the safeguards are sufficient and I hope that, over time, the Government will look again at the issue.
I accept wholeheartedly that we do not want people to deliberately slow down their cases for time immemorial, but it is important to recognise that the people we are concerned about are those who have a genuine reason for not having been in touch with the court. Even if we get to the point where they can opt for a trial at a later stage, an awful lot of time and resource are wasted in the interim period. I accept what the Minister says for now and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: 3, in clause 9, page 23, leave out lines 33 and 34
This amendment allows a magistrates’ court to carry on with an allocation hearing in the absence of the accused if the accused disrupts the hearing, even if the accused is not legally represented.
Amendment 4, in clause 9, page 23, line 41, at end insert—
“(1G) This section also has effect where a magistrates’ court determines that section 17B(5) applies and proceeds straight away to a hearing in accordance with section 18(1).”—(James Cartlidge.)
This amendment allows a magistrates’ court to move straight to the allocation stage if (under the provision inserted by Amendment 2) it decides at the plea-before-venue stage to proceed in the absence of the accused or a representative, without fresh consideration of the merits of proceeding in the absence of the accused.
Alex Cunningham
I beg to move amendment 58, in clause 9, page 23, line 41, at end insert—
“(1G) In a case within subsection (1A)—
(a) the accused may, at any time before the taking of a plea in the summary trial, apply to the court for the question of the mode of trial to be reopened;
(b) the court may, if it considers it in the interests of justice to do so, accede to the application and arrange a hearing under paragraph (c);
(c) if a hearing takes place under this paragraph and the accused appears at it, the court is not to proceed to summary trial by virtue of subsection (1A), but is to proceed in accordance with subsections (2) to (9) of section 20 above.”
This amendment would allow defendants to reopen the allocation process and elect for jury trial up to the point of taking a plea in a summary trial if the court considers it in the interest of justice to do so.
I will be very brief. Members will understand why we tabled amendment 58—simply to introduce another safeguard for the use of the new powers under clause 9. The amendment provides defendants with an additional opportunity to reopen the allocation process and elect for a jury trial where this provision is used. That would save the summons or proceedings from being void should a defendant have to make a statutory declaration under section 14 of the Magistrates’ Court Act 1980. It does not go as far as the Law Society suggests in keeping the matter of electing for a jury trial open unless the defendant has explicitly waived that right, but it at least provides an additional opportunity for the defendant to reopen the matter. It is critical that we do everything possible not just to protect the integrity of the new way of working but to ensure that justice is done. I look forward to the Minister’s response.
James Cartlidge
As the hon. Gentleman says, the amendment would enable an adult defendant to apply to a magistrates court to re-open an allocation decision taken in their absence to try an either-way offence summarily and thus provide the defendant with another opportunity to elect for a jury trial. Such an application could be granted provided it was done before the start of the summary trial and the court considered that it was in the interests of justice.
Clause 9 already provides that important safeguard, albeit with two minor differences. First, the amendment will not explicitly require the court to consider the reason why the defendant failed to appear at the allocation hearing when considering whether it is in the interests of justice to re-open the allocation decision. That is an important provision: it recognises that there will be legitimate reasons why a defendant fails to appear—if they were gravely ill in hospital or were genuinely unaware of the proceedings against them, for example. However, it also recognises that allowing defendants to deliberately hold up proceedings by absconding on bail or refusing to leave their cells does not serve the interests of justice.
Secondly, the amendment gives absent defendants who were represented by a legal representative at their allocation hearing the opportunity to make an application to re-open the allocation decision. Clause 9 already ensures that if a legal representative is present at the allocation hearing but is unable to signify an absent defendant’s consent to a summary trial, the case must be sent to the Crown court for jury trial anyway. This amendment would simply provide defendants with a further means of deliberately delaying proceedings.
The amendment undermines the purpose of clause 9, which aims to tackle deliberately obstructive defendants who are intent on denying victims justice, while protecting the trial rights of those who are genuinely unaware of proceedings. I therefore urge the hon. Member to withdraw his amendment.
Alex Cunningham
Again, the Government concentrate on the people who are difficult in the system rather than those who might have a genuine reason for seeking change. I accept the Minister’s explanation and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 84, in clause 9, page 24, line 21, leave out subsection (4).
This amendment would remove cases involving children and young people from the provisions of Clause 9.
Again, I will be relatively brief. I remain surprised, given what we have discussed already, that the new proposed procedures for adults will, through clause 9(4), apply to children. Given our debate on previous clauses, it will be no surprise to the Minister that this causes me and the Opposition some considerable unease. It introduces a power for the court to proceed with allocation proceedings in a child’s absence. Children are considered inherently vulnerable. While the Bill recognises children’s increased vulnerability and additional requirements, it is not specified how their rights will be appropriately safeguarded.
The Opposition have tabled amendment 84, which would remove subsection (4) and thus limit the provisions of the clause to cases not involving child defendants. I am interested in the Minister’s thoughts as to why the procedure needs to be extended to cases involving children at all. I imagine the number of cases to which it would apply would be relatively few in number anyway, although the Minister may have some data to show otherwise. If so, I would like to hear of it and gain some understanding as to why, once again, the Government want to apply adult criteria to children. Without sufficient reassurances from the Minister, I intend to press the amendment to a vote.
James Cartlidge
The amendment would prevent clause 9 from applying to cases involving children. I do not have those statistics to hand, but I will see if I can endeavour to find them for the hon. Gentleman.
I want to start by acknowledging the hon. Gentleman’s concerns about the application of the clause when it comes to children. As I said before, I recognise the sensitivities here, which is why we have emphasised safeguards, and I fully agree that it is vitally important that we protect the interests of children in the criminal justice system.
Subsection (4), which the hon. Gentleman proposes to remove, has been specifically drafted for children. It takes into consideration that defendants under the age of 18 have an extremely limited role to play when it comes to allocation hearings, given that they do not have the same rights as adults to elect for a jury trial at the crown court. It recognises children’s increased vulnerability in the criminal justice system and provides additional safeguards. For example, the additional new circumstances that will enable the allocation of children’s cases in their absence are far more limited than those provided for adults. In addition to the existing exception of disorderly conduct, the clause specifies that the court can only proceed to allocate in a child’s absence where the child has been invited, but failed, to provide an online indication of plea and either the court is satisfied they were served with a notice of the hearing or the child has already appeared at court on a previous occasion to answer the charge. The court must consider whether there is an acceptable reason for the child’s absence and must be satisfied it would not be contrary to the interests of justice for the hearing to proceed in the child’s absence.
The provision must be viewed in the context of existing safeguards in primary legislation. When a child is arrested and held in police detention, the law requires that a parent or guardian must be notified as soon as possible. If a summons and postal requisition is served, it will always be sent to their parent or guardian. When the case is then brought before a youth court, the law will continue to enable the court to require a parent or guardian to attend during all stages of the subsequent proceedings where that is deemed appropriate.
Sir John Hayes
There are concerns about children in care. Again, the Minister makes a compelling case about the role of parents and guardians in respect of the clause and the amendment. However, many Members recognise that sometimes children in care are in very difficult circumstances. What provision will there be for those children and what consideration has the Minister given to their plight in those circumstances?
James Cartlidge
My right hon. Friend makes a very good point. It is difficult to have specific clauses for children in care in that sense, but I will give consideration to that important point and provide him with further information.
Courts also have a statutory duty to have regard to the welfare of children. They will always have the discretion as to whether to proceed to allocate in a child’s absence. We recognise that in the majority of cases, the courts may not deem it appropriate to proceed if a child is absent from the plea and allocation hearing. However, the clause provides the court with an important means of progressing a case involving a child where it is in the interests of justice to do so. I therefore urge the hon. Member for Stockton North to withdraw the amendment.
Alex Cunningham
I am grateful to the right hon. Member for South Holland and The Deepings for raising the issue of looked-after children. He helps to illustrate further why subsection (4) is inappropriate and why we support its removal. The Minister talked about the court being satisfied that notice has been served on the child. I am not sure how the court determines that, because children can always spirit things away and parents do not always find out until much later down the process.
Sir John Hayes
I am grateful for the hon. Gentleman’s remarks, but I took from what the Minister said that he is going to go away and think about that. When a combination of a diligent Opposition and a brave Government Back Bencher raises an issue and the Minister has given—I will not say concession—that acknowledgement, the wise thing for an Opposition to do is to take that as a win and withdraw their amendment.
Alex Cunningham
I think the right hon. Gentleman almost makes my argument for me. The Minister does not actually know how the subsection will apply to a particularly vulnerable group of young people, those in care. Perhaps it is the Minister who should support the amendment.
James Cartlidge
Just to clarify the point about our not knowing, we are talking about primary legislation setting out the core changes. The most important part, as always, is that there is discretion in the courts and that is inherent in almost all aspects of proceedings in the courts. I have great faith in the judiciary in these matters. The courts have discretion over whether to apply these—and other clauses that we have been talking about which have similar measures—to children and so on. Whatever the detail in respect of the most vulnerable children—I think I have answered some of that—the most important part is the discretion that exists which is inherent in our legal system.
Alex Cunningham
I too have tremendous confidence in our judiciary, but this is an additional power that it does not require. I suspect if it was consulted, it would not particularly want it either, unless the Minister has evidence to the contrary. I maintain that it is totally unnecessary.
James Cartlidge
The hon. Gentleman will know that the judiciary will not set out explicit views on proposed legislation. Of course, we have the Law Society, the Bar Council and other important stakeholders, and we feel that there has been significant consultation on these matters. I would add that there is detail to come in the normal way through the procedure rules which is then agreed by negative resolution. I will write further to my right hon. Friend the Member for South Holland and The Deepings and happily share that with the hon. Gentleman if he so wishes.
Alex Cunningham
I am grateful for that, but again, the impacts on different groups of vulnerable children have not been fully thought through. It does not take into consideration what happens when a child fails to appear and perhaps nobody is aware that the child has been charged. I remain very concerned about the amendment and we will press it to a vote.
Question put, That the amendment be made.
Alex Cunningham
I beg to move amendment 85, in clause 9, page 25, line 5, at end insert—
“(5) If the court proceeds with the allocation decision procedure in the absence of the accused, the accused must continue to have the opportunity to plead guilty at any time before the start of the summary trial and still receive the full credit had he pleaded guilty at the first stage of the proceedings.”
This amendment would ensure that the accused is entitled to the full credit that they would have received had they pleaded guilty at the first stage of the proceedings.
Another area of concern is that the Bill could remove the potential for any credit or reduction in sentence to which the defendant would have been entitled for pleading guilty. That is because magistrates would be able to proceed to allocate the case on the basis of an assumption that the individual wishes to plead guilty. Currently, courts have the power to reduce a sentence if a defendant pleads guilty. A defendant who pleads guilty at the first stage of proceedings, defined as up to and including the allocation hearing, can benefit from a maximum reduction of one third of the sentence that would have been imposed if the case had progressed to a trial.
Justice notes:
“It is therefore beneficial to seek engagement from the defendant as to how they would like to plea rather than make it easier for Magistrates to assume based on the uncertain criterion of an ‘unacceptable reason’, since the measures may result in cases progressing whereas they otherwise may not have. This is counterproductive and may in fact result in cases being disposed of in a less efficient manner. This would therefore represent a significant disadvantage to both defendant and the criminal justice system.”
If we want a more efficient system, we should make sure that the measures will actually deliver one. For these reasons, the Opposition have tabled amendment 85, which would ensure that the accused is entitled to the full credit they would have received if they had pleaded guilty at the first stage of the proceedings, but where the court proceeds in their absence and presumes a non-guilty plea and they later affirmatively plead the contrary.
I would welcome the Minister’s assurances that full credit for a guilty plea would still be available in these circumstances. As we know, where appropriate, a defendant pleading guilty at an early stage saves the court time and money and can save the alleged victim and their family the stress and difficulty of a trial. We would not want to disincentivise appropriate pleas because the credit would be reduced due to the proposals in the Bill.
James Cartlidge
Amendment 85 seeks to ensure that a defendant, whose case is allocated in their absence, is still entitled to the full reduction on their sentence that they would have otherwise received had they appeared at court and pleaded guilty at the first available opportunity. The location of the amendment in the new legislation means that it would only apply to children. However, as the hon. Gentleman’s explanatory statement makes reference to all “accused” persons, I hope that I have correctly understood that the amendment was intended for both child and adult defendant alike.
The safeguard that the hon. Member’s amendment intends to implement is already provided for under the existing Sentencing Act 2020 and the Sentencing Council’s guidelines for both child and adult defendants. The early guilty plea provisions of the guidelines are intended to support the efficient administration of justice and the early resolution of cases. The key difference is that the existing guidelines take into account the reasons why the defendant’s plea was delayed—which I believe is the right approach—rather than reducing the sentence irrespective of why they failed to appear.
Currently, where a defendant fails to appear at a plea and allocation hearing, the case stalls until the defendant appears; under the new provisions a case can progress. Defendants who fail to attend for allocation and then later plead guilty will create inefficiencies in the system; the court and prosecution will expend time and effort preparing for a trial that is not required, and victims and witnesses—who we should not forget—will be caused anxiety and inconvenience because they are told to attend court. In such circumstances, it is right that defendants should not always be entitled to the full reduction of one third off their sentence.
Alex Cunningham
The Minister just used the phrase “not always”. Could he expand on that, please?
James Cartlidge
The existing law and Sentencing Council’s guidelines provide that magistrates’ courts must consider whether there are particular circumstances which otherwise made it unreasonable to expect a defendant to have indicated a plea at an earlier stage in the proceedings. This means that defendants who fail to appear at the plea and allocation hearing for legitimate reasons will continue to be entitled to the full reduction of one third off their sentence—just to be clear. I therefore urge the hon. Member to withdraw the amendment.
Alex Cunningham
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
James Cartlidge
As I have said, this is an important clause. We have considered the amendments, and I understand the motivations of the hon. Member for Stockton North, but just to remind us, under the current law, a magistrates court cannot reach a decision in the absence of an adult defendant about whether to allocate a triable either-way case for summary trial at magistrates court or jury trial at Crown court.
Until that decision is made, the case cannot progress any further. The only exceptions to the rule are if the defendant has agreed, through their legal representative, that the court can proceed in their absence or if the defendant’s disorderly conduct in the court means that it is not practicable to proceed in their presence.
That means that the timely progression of cases through the criminal justice system can stall indefinitely when defendants deliberately disengage from the proceedings—for example, by absconding on bail or refusing to leave their cell when held on remand. That can have serious negative impacts on victims and witnesses and cause serious delays to justice. In some cases, it may lead to witnesses withdrawing their support for the prosecution, causing cases to collapse and allowing perpetrators to go unpunished.
Clause 9 will enable magistrates courts to decide mode of trial for such cases in the absence of defendants in a wider range of circumstances than the law currently allows for, where the defendants fail without good cause to appear at court for their allocation hearing. Any decision to allocate in absence will be subject to the interests of justice test.
Adult defendants will retain the right to elect for a jury trial at Crown court up until the start of any subsequent summary trial, depending on why they failed to attend the allocation hearing. Defendants with legitimate reasons for failing to appear will get another opportunity to elect before the start of a summary trial allocated in their absence.
Although defendants under the age of 18 do not have the same right as adults to elect for a jury trial at Crown court, there are still occasions when a court will need to reach an allocation decision in a child’s absence. The current law only provides one exception that allows for this: where it is not practicable due to a legally represented child’s disorderly conduct before the court. Subsection 4 provides additional new circumstances—albeit far more limited than those provided for adults—that will enable the allocation of children’s cases in their absence in a way that acknowledges their increased vulnerability and provides additional safeguards to those already in the youth justice system.
Alex Cunningham
Briefly, the Minister has heard our arguments in relation to children throughout this. That, of course, remains our principal concern around this clause. I would ask that—whether for children or adults—the Government look again at the various safeguards that are in place, to see if there are opportunities for them to be improved. Again, the Government are concentrating on the difficult defendants rather than the wider range of defendants within the court system, even if they do have an opportunity at a later stage to elect for that particular type of trial. Despite our reservations about children, we will not oppose the clause, but we hope that the Government will reflect on the many things we have said, particularly on young people.
Question put and agreed to.
Clause 9, as amended, accordingly ordered to stand part of the Bill.
Clause 10
Sending cases to Crown Court for trial
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Measures in this Bill will clear away obstacles in current legislation standing in the way of the courts carrying out more of their administrative case management outside of the courtroom. Clause 10 will help to deliver that by removing the legal requirement that defendants charged with indictable offences must first appear before a magistrates court to be informed that their case is being sent to the Crown court.
Under existing law, where a defendant has been charged with an indictable-only offence, such as conspiracy to defraud, and there is no other reason to hold a hearing—for example, to consider issues of bail—then a court hearing is surely superfluous. The defendant will be sent to the Crown court for trial regardless of his or her consent.
Similarly, in triable either-way cases, where a defendant has engaged with the court in writing or online and elected for a Crown court trial, equally there would be no need to hold a hearing. This provision will help to streamline criminal procedures by reducing the need for physical appearances in the magistrates court and removing unnecessary hearings. However, this is a discretionary power. A magistrates court will only exercise that power where it considers it appropriate and in the interests of justice to do so and no issues, such as bail, need to be considered.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Powers of Crown Court to remit cases to the magistrates’ court
Question proposed, That the clause stand part of the Bill.
James Cartlidge
We come to a particularly important clause in the context of court recovery.
Clause 11 will help create a more flexible and unified court system by providing the Crown court with increased flexibility to return certain cases to the magistrates court. Currently, the Crown court can return cases to the magistrates court in a very limited set of circumstances. The clause will provide the Crown court with a new general power to return cases to the magistrates court, including to the youth court, for trial and sentencing, when the judge is satisfied that magistrates have the necessary jurisdiction.
A defendant’s right to elect for jury trial is unaffected by this measure. Before the Crown court can return a case back to the magistrates court for trial, it must first obtain the defendant’s consent to do so if the defendant is over 18.
Clause 11 also requires the Crown court to provide reasons whenever it decides not to send a child defendant under the age of 18 back to the youth court. The clause recognises that the nature and seriousness of criminal cases can change as they progress through the criminal justice system. It helps to create a more efficient criminal court system by ensuring that cases are always heard in the most appropriate venue.
On the important point of court recovery, we estimate that clause 11 will make room for a further 400 Crown court sitting days. Those days will be saved on the following assumptions: that 5% of not guilty triable either-way cases would be sent back for trial and 10% of guilty triable either-way cases would be sent back for sentencing. The 5% and 10% figures are of eligible cases—in other words, cases that received less than six months at Crown court; that is based on pre-covid 2019 data. I remind colleagues that 400 days saved in the Crown court are 400 days when we can hear murder cases, rape cases and cases in the backlog. That is why the clause is incredibly important.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I was fortunate enough to witness a case at the Old Bailey last week, and to see how the process operates. There are people waiting quite a long time on remand to have their cases processed. Can my hon. Friend confirm that the terms of the clause will also reduce the amount of time that people spend on remand, waiting for their trial?
James Cartlidge
My hon. Friend makes an excellent point. We should be cognisant of those on remand—whether in custody or on bail, but particularly those in custody. She makes exactly the right point: by definition, if we free up space in the Crown court through the clause, we are enabling more cases to be heard more quickly.
It is important to stress that those cases would go back to the magistrates court. We can do that because the “backlog” in the magistrates court is now far better; we have seen a huge reduction in the outstanding case volume because it has faster throughput. All of us would pay tribute to our voluntary judiciary. I was pleased yesterday to hold a meeting with MPs invited from all parties who are currently magistrates or have been magistrates. A number of hon. Friends were there and we had a very interesting discussion. I have great faith in the ability of the magistrates courts to take more cases and to assist the Crown court, which has the serious matter of indictable cases.
Without further ado, I should say that this is an important clause, which forms an important and significant part of court recovery.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Powers of youth court to transfer cases if accused turns 18
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 12 amends existing legislation relating to the power of the youth court to return defendants who have turned 18 before the start of trial to the adult magistrates court or to send them to the Crown court. Although the power is already operationally possible, the clause makes the process for exercising it much clearer. It also enables such decisions to be made other than in open court where appropriate, provided that the youth court serves certain documents on the defendant.
The clause also provides that, where the youth court proposes to remit a person to the adult magistrates court for an offence triable either way, the court must give the defendant the opportunity to elect for a jury trial. It also provides that the criminal procedure rules should set out the circumstances when joined cases or co-defendants are to be sent to the Crown court along with the main offence.
The clause aims to ensure that new provisions for adults, which enable cases to be sent to the Crown court without the need for a hearing, are replicated in the youth court system.
Alex Cunningham
As the Minister outlined, clause 12(3) inserts proposed new subsection (1D) in section 47 of the Crime and Disorder Act 1998, empowering the youth court to transfer the proceedings without an in-person hearing if the accused turns 18. Organisations that campaign on youth issues have raised several concerns about this cliff-edge clause.
Moving into the adult courts system can have a number of knock-on impacts on sentencing and the spending periods associated with convictions. It is therefore significant, and it is important that the accused is involved in the hearing. I am not convinced that it is appropriate to proceed with such a hearing in the absence of the accused via a written procedure. As the backlog continues to grow, more youths are likely to cross the significant age threshold while their case is still travelling through the justice system.
The Minister will be as concerned as I am by the backlogs in the youth courts, although they are not as significant as those in the adult system. The Minister of State, the hon. Member for Louth and Horncastle (Victoria Atkins), confirmed in her answer to my written question No. 58390 that the average time taken to deal with youth cases had doubled recently from 52 days in April 2020 to 102 days in June 2021.
Sadly, no up-to-date figures are available. I suspect, given inaction and the pandemic, that the period of time for youth cases to be heard will have grown along with others. If it is taking months on end to get youth cases into court, it follows that more and more young people could be transferred to the adult courts. With the magistrates court backlog as it is, there could be further delay in getting the case to court, with young people being forced to lead their lives on hold, not knowing their fate. That is all the more reason why the Minister should think again about the new measure he wants to introduce.
I would welcome the Minister’s thoughts on how we can mitigate the cliff edge at the end of the youth justice system. It seems to me that simply proceeding with this jump on paper, without engaging the defendant, does the opposite. Yes, the person may be an adult by the time they get to court, but they were children at the time of the alleged offence. I repeat what I said about clause 9: we must do everything possible to ensure that justice is done and that children are properly protected.
James Cartlidge
I stress an important point to colleagues about children. I am afraid that it is a fact that they can commit very serious crimes. Although, in all aspects of the justice system that deal with younger people, we have to be cognisant of vulnerabilities, they have to face justice as well under our system as it is configured.
Let me deal with the point about whether the provision would lead to more cases of a defendant who has turned 18 after committing the offence being sent to the adult system. As the power already exists, the provision is not intended to result in any such increase. Alongside the provision to enable the Crown court to remit cases back to the magistrates court, the clause aims to ensure that courts have the discretion to ensure that cases are always heard in the most appropriate venue.
Alex Cunningham
Will the Minister make a statement on the record about his view of children being transferred from the youth court to adult courts, having committed the crime as a child? What is his position on those transfers?
James Cartlidge
The hon. Gentleman knows that this is not a new matter. When that is the case, when it comes to sentencing, the court will have to take into account the age at which the offence was committed. That is the most important point we need to remember.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Involvement of parent or guardian in proceedings conducted in writing
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Under the current law, when a defendant under 16 years old is charged with a crime, or is for any other reason brought before a court, the court must require a parent or guardian to attend court at all stages of the proceedings, unless it would be unreasonable to do so. When a defendant is 16 to 17 years old, the court may require a parent or guardian to attend.
The purpose of the provision is to ensure that this important safeguard applies to the new written and online procedures in the Bill—for example, when a child is invited to indicate a plea online, or receives a written notification that the court has decided to send their case directly to the Crown court.
Clause 13 provides that, having regard to the circumstances of the case, the court must ascertain whether the parent or guardian of a child under 16 years old is aware of any written or online proceedings and, if not, to provide them with information about the proceedings. The court may do this for children aged 16 to 17 years old. Where it is appropriate to make a parent or guardian aware, the clause also requires the courts to provide them with information explaining the new written and online procedures, including the choices available to the child, and the effects of those choices.
Alex Cunningham
Given what I have already said about the need for full and proper safeguards for child defendants involved in the criminal process, I am sure it will be no surprise to the Minister that the Opposition are minded to oppose the clause. I will not go over again matters debated on clauses 8 and 12, but I wish to share the additional concern of the Bar Council, which says:
“Many parents of children coming into the criminal justice system have literacy issues and are often themselves vulnerable adults. Securing their involvement in writing, as a ‘safeguard’ for a child or youth, who is also to be dealt with by way of a written process, is an insufficient safeguard for the administration of criminal justice.
Face-to-face hearings that require the attendance of the parent, guardian or responsible adult mark the gravity of the proceedings. They also allow for further opportunities for appropriate intervention by relevant agencies on behalf of vulnerable children and youths, or in support of parents or guardians that need help and guidance, for which the legal representative is often the point of referral.”
I agree with that entirely, and clause 13 contributes to the watering down of the vital safeguards for child defendants. We are therefore unable to support it.
James Cartlidge
To be fair to the hon. Gentleman, he is being entirely consistent. He will appreciate that it would be odd and inconsistent if we were to keep the other clauses and remove this clause, given that it has safeguards in relation to those clauses. Notwithstanding the fact that he has some overarching concerns, he will appreciate that it would be odd for us to remove it in those circumstances.
Sir John Hayes
I wish to add remarks similar to those I made about children in care. When the Minister sends a note, as he said he might, and gives this further consideration, perhaps he could also address this clause, as the same arguments I made earlier apply.
James Cartlidge
My right hon. Friend is correct; to be clear, this clause sits with the other clauses, as it contains safeguards relating to them. They are part and parcel of the same set. I will ensure that he receives the further information that he seeks.
Sir John Hayes
I am grateful to the Minister.
Question put, That the clause stand part of the Bill.
James Cartlidge
The clause gives judges greater flexibility to manage criminal proceedings, avoid unnecessary hearings and speed up justice. It allows the Crown court to determine an application for a witness summons without a hearing. It also removes certain statutory requirements in criminal proceedings for the court to hold a hearing before lifting reporting restrictions. Courts will continue to have the option of convening a hearing in those cases, but this provision will enable them to make such decisions on the papers when they consider that appropriate and in the interests of justice. They will still have to consider any representations made by the parties concerned, including perhaps that the issue requires a hearing, before making a decision.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Documents to be served in accordance with Criminal Procedure Rules
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 1 be the First schedule to the Bill.
James Cartlidge
It is vital that we ensure that the courts are accessible to everyone who needs to use them, and that includes how documents may be sent and received. In some older legislation, a particular document is deemed served only if sent by registered post, which is both inflexible and inefficient.
As we introduce the common platform, it is important to ensure that our court users have the opportunity to make full use of online processes where appropriate when interacting with the court and other interested parties. The clause gives effect to schedule 1, which contains amendments to existing legislation—14 Acts in total—to enable the service of documents in criminal proceedings in accordance with criminal procedure rules, by whichever means is the most appropriate, including by electronic means.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 16
Power to make consequential or supplementary provision
Question proposed, That the clause stand part of the Bill.
James Cartlidge
The clause gives the Lord Chancellor the power to make consequential or supplementary amendments to legislation in relation to any of the criminal procedure provisions in clauses 3 to 15. It is to be read in conjunction with clause 45, which covers regulations relating to all the provisions in the Bill.
The clause provides that the Lord Chancellor may amend, repeal or revoke any provisions within an Act of Parliament passed before this legislation or during this parliamentary Session. It will also enable the Lord Chancellor to amend, repeal or revoke any provisions within secondary legislation, irrespective of when that legislation was made. Any regulations that amend or repeal primary legislation are subject to parliamentary scrutiny through the affirmative resolution procedure. The wording is standard, and standard practice to have in a Bill, as I understand it.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Consequential and related amendments
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 2 be the Second schedule to the Bill.
James Cartlidge
The clause introduces schedule 2, which amends existing primary legislation as a result of the implementation of clauses 3 to 12. The amendments in schedule 2 take account of the new court processes we are introducing and the changes we are making to current criminal procedures. They include amendments to the Magistrates’ Courts Act 1980, the Road Traffic Offenders Act 1988, the Courts Act 2003, the Criminal Justice Act 2003, the Police and Criminal Evidence Act 1984, which includes legislation about bail after arrest, the Crime and Disorder Act 1998, the Coroners and Justice Act 2009 and the 2020 sentencing code. These are technical and consequential amendments required to enable these clauses to have the intended effect. I commend clause 17 and schedule 2 to the Committee
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Alex Cunningham
I beg to move amendment 86, in clause 18, page 34, line 38, leave out “require online procedural assistance” and insert “are digitally excluded”.
This amendment would require regard to be had to the needs of persons who are digitally excluded when making Online Procedure Rules.
The Chair
With this it will be convenient to discuss the following:
Amendment 87, in clause 24, page 41, line 30, leave out “require online procedural assistance” and insert “are digitally excluded”.
This amendment would require the Lord Chancellor to have regard to the needs of persons who are digitally excluded when allowing or disallowing Online Procedure Rules to be made.
Amendment 88, in clause 27, page 42, line 31, leave out “require online procedural assistance” and insert “are digitally excluded”.
This amendment would require the Lord Chancellor to arrange for the provisions of appropriate and proportionate support for persons who are digitally excluded.
Amendment 89, in clause 31, page 44, leave out lines 11 to 15 and insert—
““persons who are digitally excluded” means persons who, for reasons including their inability to access the internet or digital devices, lack of basic digital skills, or problems with confidence and motivation, experience difficulty in engaging with computers or online processes”.
This amendment inserts a new definition of “persons who are digitally excluded”.
New clause 2—Online Procedural Assistance—
“(1) Online Procedural Assistance, must be made available and accessible to any party or potential party to proceedings governed by Online Procedure Rules that requires it. In delivering this duty, the Lord Chancellor must have due regard to the intersection of digital exclusion with other factors, such as age, poverty, disability and geography and deliver support services accordingly.
(2) It must include assistance to enable such a party or potential party to have a reasonable understanding of the nature of the proceedings, the procedure applicable under Online Procedure Rules and of how to access and navigate such procedure. To this effect, it will provide both advice and technical hardware, as appropriate, and will provide assistance to such individuals throughout the course of their proceedings.
(3) Anyone who requires Online Procedural Assistance must have the option of receiving it either via remote appointments or in-person appointments at a site local to them.
(4) Online Procedural Assistance must include, for a party or potential party whose first language is not English, assistance, by interpretation or translation as appropriate, in a language that is familiar to the party or potential party.
(5) The delivery of Online Procedural Assistance must be evaluated at yearly intervals by an independent evaluation team. To assist in these evaluations, data must be routinely collected relating to the protected characteristics of those using the service, outcomes of cases that used Online Procedural Assistance and the frequency and location of the appointments provided. This must also be made publicly available.”
This new clause clarifies the nature of online procedural assistance.
Alex Cunningham
We now move to part 2, chapter 2 of the Bill, which sets up powers to make online procedure rules for specified proceedings in civil, employment, family and tribunals to be started, conducted, progressed or disposed of by “electronic means”. The Opposition recognise the importance of expanding the use of online procedures in our court processes, and its role in making the system more efficient and cost effective, and so are broadly supportive of the provisions of this chapter.
However, we seek some reassurances about the provisions for digitally excluded individuals in the Bill. Research by Lloyds Bank shows that 16% of the UK population lack basic digital skills and are unable to
“participate in a digital society.”
It is vital that these people are not left behind by the provisions in this Bill.
The amendments aim to introduce further safeguards and accountability and scrutiny mechanisms at points we think may be appropriate, so as to ensure the measures do not preclude practical access to justice. I look forward to hearing what the Minister thinks of them.
The amendments relate to the parts of the Bill that refer to
“persons who require online procedural assistance.”
I thank Justice and the Public Law Project for their assistance and input. This phrase is used at a number of points in the Bill, including at clause 18(3)(a), which requires
“Powers to make Online Procedure Rules…are to be exercised with a view to securing…that practice and procedure under the Rules are accessible and fair,”.
Clause 18(4) states:
“For the purposes of subsection (3)(a), regard must be had to the needs of persons who require online procedural assistance.”
Clause 24(4) states:
“In deciding whether to allow or disallow rules,”—
made by the Online Procedure Rule Committee—
“the Lord Chancellor must have regard to the needs of persons who require online procedural assistance.”
Clause 27 places a duty on the Lord Chancellor to arrange for support that is
“appropriate and proportionate for persons who require online procedural assistance.”
Such persons are defined in Clause 31, which states
“‘persons who require online procedural assistance’ means persons who, because of difficulties in accessing or using electronic equipment, require assistance in order to initiate, conduct, progress or participate in proceedings by electronic means in accordance with Online Procedure Rules;”.
The Bar Council’s briefing for Second Reading noted:
“It is unclear if “persons who require procedural assistance” is a socio-economic, physical, mental or other difficulty.”
It also recognises that this
“seems to raise potential equality and diversity issues.”
Justice is also concerned that the definition is “unduly narrow and unclear”. Although the Opposition support the inclusion of the duty to arrange support for persons who require online procedural assistance, we share the concern that the current definition of such persons undermines the effectiveness of the duty. Justice explains that people may be able to access or use electronic equipment but may still be unable to effectively engage with or participate in online proceedings for other reasons—for example, people who speak English as a second language, people with learning difficulties, cognitive or sensory impairments, and those who require different modes of communication, such as braille or sign language. Furthermore, digital exclusion can be situational, because people
“who might normally be confident online may struggle with online services when faced with crises such as divorce or debt which reduce people’s confidence and capability.”
Those are some of the findings from Justice’s excellent 2018 report, “Preventing Digital Exclusion from Online Justice”, of which I am sure the Minister is aware. Justice also notes that it is unclear whether the definition as currently drafted would include people who are able to use electronic equipment but do not have access to the internet—for example, because they cannot afford the data, as opposed to the equipment, such as a phone, tablet or computer. Will the Minister please provide some clarification on this point? I hope the intention is that the definition will cover such scenarios.
In its 2018 report, Justice argued for the need to provide effective support to those who are digitally excluded, in order to realise the full potential of online justice services and improve access to justice for many people. In the report, Justice used the term “digitally excluded” to describe people who, for reasons such as
“an inability to access the internet or digital services, lack of basic digital skills, or problems with confidence and motivation”,
experience difficulty in engaging with computers and online processes. We think reflecting that meaning in the legislation would ensure that the duty to provide support to those who need it would be most effective and would encompass all those who may need assistance. To that end, amendment 89 inserts a new definition into clause 31, stating that
“‘persons who are digitally excluded’ means persons who, for reasons including their inability to access the internet or digital devices, lack of basic digital skills, or problems with confidence and motivation, experience difficulty in engaging with computers or online processes.”
Amendments 86, 87 and 88 insert the phrase
“persons who are digitally excluded”
in the place of
“persons who require online procedural assistance”
at the points I mentioned previously. The Opposition and Government have the same intention here: to provide support to those who need it, so that no one is precluded from accessing justice. I hope the Minister can see where we are coming from and will look favourably on the amendments.
I turn now to new clause 2, which is another approach to dealing with some of the concerns. It simply clarifies the nature of online procedural assistance, and I would be grateful if the Minister could address each of its subsections and tell the Committee whether they are matters that he and his team have already considered, and whether he envisions that the Bill as drafted would cover them. Does the duty on the Lord Chancellor currently include consideration of other factors that intersect with digital exclusion, such as age, poverty, disability and geography? The right hon. Member for South Holland and The Deepings was helpful on these issues in an earlier debate, when he spoke up for older people. I am sure that he, too, will want answers to our questions and, I hope, a few of his own.
Will the assistance cover both advice and technical hardware, and will it be available throughout the proceedings? Will persons receiving the assistance be able to do so via either a remote appointment or an in-person appointment at a site local to them? For those whose first language is not English, will assistance be provided through interpretation or translation, as appropriate, in a language that is familiar to the party or potential party? Will the assistance be monitored and evaluated at regular intervals? If so, how and by who? We want to be able to offer the Government keen support for the proposals, so I look forward to the Minister’s response to the concerns we have raised.
James Cartlidge
I am grateful to the hon. Gentleman for giving us the opportunity to talk through the issues of digital exclusion. These are important issues. As colleagues know, much of the Bill, particularly once we go beyond the judicial review clauses, relates to digitisation and I feel very strongly that digitisation has many benefits.
Colleagues will remember the evidence from the Scottish Law Society. One of its most interesting points was how, in Scotland, its experience had been that the use of video technology and so on had kept justice going during the pandemic. That has certainly been the case in England and Wales. I appreciate that the hon. Gentleman is not saying otherwise—he is looking at those who are excluded. In principle, in many ways digitisation can enhance access to justice. In the greatest collective challenge to access to justice that this country has seen for many decades—the pandemic—digitisation maintained access to justice when otherwise many more cases would have been stuck and the backlog would have been even worse.
I have two points to make on a personal note. I am not a lawyer by background, but I spent my year off as an outdoor clerk in the High Court, carrying bundles of paperwork around the Royal Courts of Justice, from window to window. Some were shut in my face, because it was not the right window or the person was going off for lunch—it is quite common, actually. There has always been an enormous amount of paperwork in the system, as the hon. Member for Hammersmith, who I believe was a barrister, will know. Trying to reduce those bundles will take time. In the Crown court in particular, we will still see large bundles of papers. We will still have large paper packs for the jury to look at; in many ways, that is still the most effective method. Stripping out the paperwork and increasing digitisation will have its moments of frustration for practitioners and staff. It will have its downsides. The system will never be perfect, but in general and in principle digitisation enhances the system.
The second personal point is about my business idea. Mr Rosindell, you will know about house prices in London. The idea was to enable groups of friends who were renting to buy property together. It was for flatmates to buy and was called “Share to Buy”. Once we had come up with it and had approached a lender, who was supportive, we realised that the problem was how to get people to apply. We decided that the only way to do it was online. At that time, there were not really online mortgage applications. We thought at great length about what to do if people do not have internet access and want to make a paper-based application. Obviously, that scheme is not as significant as the legal system, but the same principles apply. I am a great believer in the ability of the digital sphere to enhance accessibility, to increase people’s access to important things, alongside having the appropriate safeguards and support, which are the two key words.
We recognise that those who are digitally excluded may need assistance in starting or progressing their case online. Therefore, HMCTS has set up a digital service that is designed with and for users to help navigate the justice system. It will be supported through HMCTS user contact functions, who will issue guidance and help on the journey through the service over the phone and related call-centre channels, such as web chat. As I said in discussion on earlier clauses, HMCTS recently awarded a national contract to deliver positive and practical solutions to support users and break down barriers to digital inclusion across civil, family and tribunal jurisdictions.
Although the measures seek to direct as many users as possible through primary digital channels, some users may have problems accessing digital services. The hon. Member for Stockton North made some quite specific points about geography, age and disability. We recognise that some users may have particular problems. As I noted in the previous discussion, paper forms will remain available, and work is ongoing to review and simplify those forms. HMCTS will ensure users receive equal service no matter what channel they use to engage.
Amendment 86 would require regard to be had to the needs of persons who are digitally excluded when making online procedure rules, changing, as a number of the amendments would do, the terminology “require online procedural assistance” for that of being “digitally excluded”. Amendment 87 would require the Lord Chancellor to have regard to the needs to persons who are digitally excluded when allowing or disallowing online procedure rules to be made.
The duty to have regard to the needs of those who may be digitally excluded is addressed in clause 27, which requires the Lord Chancellor to make provisions for those who require additional support. Through that measure, court users will be supported through their online journey in person and remotely. When considering whether to allow or disallow rules, the Lord Chancellor must have regard to those who require online procedural assistance.
Amendment 88 would require the Lord Chancellor to arrange for the provision of appropriate and proportionate support for persons who are digitally excluded. The measures already seek to ensure appropriate and proportionate support for persons who are digitally excluded or who, in the Bill’s terms,
“require online procedural assistance”
so that they are able to engage with online procedures. That includes assistive technology, such as a screen reader, and simplifying language to ensure that users understand what they are required to do.
Sir John Hayes
I was delighted to hear that in his earlier life the Minister was a kind of Wemmick figure to Mr Jaggers before his expectations were even greater and he came here. His account of carrying papers around the courts perhaps prepared him for the immense amounts of paperwork that one deals with as a member of the Government, from my memory of it. However, I could not disagree with him more on this part of the Bill, for three reasons.
The first is accessibility. There are profound problems with moving what was previously a personal connection or a written connection with any organisation or body to an online one. It is particularly disadvantageous for vulnerable groups, including people with learning difficulties, people with mental health problems, people with particular disabilities such as hearing loss, and the unsighted. The hon. Member for Stockton North mentioned the elderly too, and the Minister acknowledged that point in respect of his own parents, who he said were not as switched on to these matters as he doubtless is.
There are other issues too, such as security and confidentiality. There is an immense myth. I know that from having been in the IT industry and having been Security Minister. The combination of those experiences taught me a long time ago that online procedures and processes are very hard to secure beyond doubt, so I have great doubts about whether confidentiality can be maintained as it can by more conventional means.
Fundamentally, my problem is one of community. We have to ask in what kind of place we want to live, and how we want to conduct our lives. That applies to our work in Parliament, to the exercise of the law, and to business, as the hon. Member for Stockton North said. Personal interaction and the intimacy associated with face-to-face engagement are critical to framing and affirming our sense of community and connection with others. The more remote and anonymous we make that engagement, the more we will undermine that sense of what we share, so I have profound doubts about the whole move to online government, as I mentioned earlier.
The Minister is being extremely adroit in his handling of the Committee; indeed, I sent him a note to say how deftly he handled my earlier inquiries. I do not mean to patronise him, but I think he can be very proud of his performance. I have been in that seat many times, as he knows, and I know how tough it is. However, when I raised these matters previously he suggested—slightly untypically and rather clumsily—that I was regressive. He must know that the very concept of progress is suspect, because believing in progress means believing in a destination—a pre-ordained destination towards which we are all hurtling.
In truth, of course, that is profoundly philosophically unsound. I can only assume that, standing there under those dreadful Whigs in Gladstone’s Cabinet, the Minister has adopted the Whig theory of history that we are all merely actors who are acting out a script written for us by some other power. There is nothing regressive about my remark; there is perhaps something human about it. I want more politics on a human scale; I want it to be safe, secure and accessible to all, and I want it to affirm our sense of community and build on what we share.
For all those reasons, I seek extremely profound reassurances from the Minister—of the kind that he has offered previously, in the spirit that I recommended a few moments ago—that my constituents, particularly the most vulnerable, will not be disadvantaged by the legislation. The hon. Member for Stockton North alluded to geography. Well, some people in rural areas such as South Holland and The Deepings are not yet “online”, and I am sure that that applies to constituencies represented by Members on both sides of the Committee. I do not want those people to be at a disadvantage.
The Minister is right that during the pandemic we had to make do, and that did have some beneficial effects: it forced us to think about how we could perhaps do things more efficiently. In the end, however, I was desperate to get back to the business of meeting my constituents face to face, and of debating and engaging in person with colleagues in Parliament. I am sure that that applies to most right hon. and hon. Members in this House. Let us not hurtle down the road to moving everything online, only to look back in years to come and think, “My goodness! What have we done and what have we lost?”
Andy Slaughter (Hammersmith) (Lab)
I shall be brief. I felt half invited by the Minister to respond, but I will not tell a whole war story from the courts, as we used to do on the Justice Committee. I commiserate with him for his treatment by the Royal Courts of Justice; it is nothing personal that the windows are being shut in his face.
I will shock the Committee again: I agree with the right hon. Member for South Holland and The Deepings. I am afraid that I am one of those people who still carries large amounts of paper around and cannot quite manage otherwise. That is possibly why it is good that I am not a practitioner any longer: the courts have adapted quite well to new technology—practitioners, the judiciary and the senior judiciary in particular are extremely adroit in that respect. I agree entirely with my hon. Friend the Member for Stockton North that we have in common with the Government the intention to ensure that things are done as efficiently, quickly and economically as possible. I entirely agree that new technology has a big role to play in all that.
The Committee may hear a “but” coming. The “but” is that there are several ways, but two in particular, in which we must be very wary. First, there is the issue of access. We have all had to learn to deal with new technology, and an example of that is how we advanced our ability to do so under the stresses of covid. Zooming is as common to us now as face-to-face meetings.
Sir John Hayes
It is a mark of both the sense and sensibility of the scrutiny of the Committee that the hon. Gentleman should be defending the Minister and the Government’s position from my mild but profound attack. It is a good Committee where that kind of communion, if I may put it that way, can be enjoyed.
Andy Slaughter
I am going to impress the right hon. Gentleman even more in a moment by making a 180° turn and joining his critique of the Minister.
There may well be times when Zooming is more efficient and appropriate, but there will be many times when face-to-face meetings are more appropriate, including meetings with constituents. During the long debates that we had on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I cautioned many times that it moved too quickly to exclude people from the system in the name of efficiency. There is a danger that we will do that here.
The Minister fairly said that we must proceed with caution and be aware of some people’s digital limitations. It is easy to say that, but it is more difficult to ensure that it happens, because the same people who struggle with matters online are those who cannot make their voices heard, and they just disappear from the system. We have excluded people even though it was not intentional.
A second important category—coroners—was touched on. I will not say much now because I expect that we shall come on to the plans to move those online when we come to that section. The Minister will remember that Mr Rebello, senior coroner for the Liverpool and Wirral coroner area and secretary of the Coroners Society, said that he liked to have everybody in the room. He was not saying that for its own sake, but because there are times, when evidence is being heard or judicial decisions are being made rather than in administrative hearings, when it is important for people to be present. Although doing things remotely may have been the best that we could do during covid, that will not always be the case.
I simply caution that if justice is to be properly done, we should be cautious before we throw out the methods that have served us not just for decades but for centuries in assessing the quality of evidence, in advocacy and in ensuring that we get to the best result we can in every case. I hope that we will be as modern and efficient as we can, and use as much technology as we can, but not at the price of excluding people or of not seeing justice done.
Alex Cunningham
I appreciate the Minister’s sharing information about his past career; it is fascinating to find out what people have done in their previous lives. Perhaps one angle of his business could have been encouraging people to move to the north where, instead of buying a share in a house for £150,000, they could buy a lovely three-bedroom semi-detached house in Stockton; have access to our wonderful newly opened Globe theatre; and be 30 minutes from the Yorkshire moors, 40 minutes from the Yorkshire dales and only an hour from the Northumberland coast.
James Cartlidge
Very quickly, because it is incredibly relevant, I assure the hon. Gentleman that our business was entirely national. The reason that it was able to operate nationally, in every part of the country, is because it operated online.
Alex Cunningham
That is why we welcome the way that we can move forward, even in the world of justice. We can move online as much as possible, but the Minister knows how much we have been pressing on the issue of safeguards.
The right hon. Member for South Holland and The Deepings was concerned that some people in his area, as in other areas of the country, might not have access. When he talked about face-to-face meetings and the importance of community, it struck me that he said that he did not want us to underestimate how important that is and to undermine those personal relationships. I have maintained throughout my contributions to the Committee that we do not want justice to be undermined as a result of moving online.
The Minister spoke about the Scottish experience. It did keep it going, but for those who had access to systems. He acknowledged the need for appropriate support and recognised that more detail must be provided. We look forward to seeing that detail in future.
My real concern is that some of the language in the Bill is a little on the soft side. I would rather see it more clearly defined and nailed down, to ensure that the people who are most likely to be excluded from digital services are given all the support they need, which might even mean providing them with the data that they require to use the systems that are available to them.
In the light of the debate, however, I do not intend to press any of the amendments to the vote, but I say again that some of the language is soft. We need that detail and I hope that there will be no devils in it. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That further consideration be now adjourned.—(Scott Mann.)
Judicial Review and Courts Bill (Eighth sitting)
Tuesday 16th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 November 2021 - (16 Nov 2021)
The Chair
Before we begin, I have a few preliminary announcements. I remind Members that they are expected to wear a face covering except when speaking or if they are exempt, in line with the recommendations of the House of Commons Commission. Please give each other and members of staff space when seated and when entering and leaving the room. I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre in the House or at home.
Hansard colleagues would be grateful if Members could email their speaking notes to hansardnotes @parliament.uk. Please switch electronic devices to silent. Tea, coffee and other beverages are not allowed during sittings.
Clause 18
Rules for online procedure in courts and tribunals
Alex Cunningham (Stockton North) (Lab)
I beg to move amendment 59, in clause 18, page 35, line 9, after “that” insert—
“(a) a person may choose to participate in a hearing by non-electronic means, and
(b) “
This amendment would allow a person to choose to participate in a hearing by non-electronic means.
The Chair
With this it will be convenient to discuss amendment 90, in clause 18, page 35, line 11, at end insert—
“(7A) Online Procedure Rules must require a person to participate in a hearing by non-electronic means if a physical or mental health assessment of that person confirms that online proceedings will impede their ability to understand or effectively participate in proceedings.”
This amendment would ensure if someone had a physical or mental condition that would prevent them from understanding or effectively participating in online proceedings then the Online Procedure Rules must allow them to participate by non-electronic means.
Alex Cunningham
It is a pleasure to serve under your chairmanship, Sir Mark.
As I mentioned in my previous speech, clause 18 provides for the creation of online procedure rules. The online procedure rules must require that proceedings of a kind specified in regulations made by the Lord Chancellor, per clause 19(1), are to be initiated by electronic means. Paragraphs (l)(b) and 1(c) of clause 18 allow for the online procedure rules to either authorise or require that specified proceedings are conducted, progressed and disposed of by electronic means, and that parties to the proceedings participate by electronic means.
The Courts and Tribunals (Online Procedure) Bill provided participants with a choice to initiate, conduct, progress or participate in proceedings by non-electronic means. That choice is retained for those without legal representation in relation to the initiation, conduct, progression or participation other than by a hearing. However, a person is currently unable to choose to participate in hearings by electronic means, and may do so only at the direction of the court or tribunal.
As JUSTICE explain:
“A myriad of issues, including health conditions and disabilities, may make it difficult for individuals to follow or engage with a virtual hearing and those same issues may make it difficult for them to explain to the court or tribunal why they would prefer to attend in person.”
Amendment 59 would allow a person to choose to participate in a hearing by non-electronic means if that is appropriate for them. Amendment 90 would ensure that if someone had a physical or mental condition that would prevent them from understanding or effectively participating in online proceedings, the online procedure rules must allow them to participate by non-electronic means.
Amendments 59 and 90 share the same aim, and together their impact would be to ensure that court users who may have vulnerabilities or particular conditions are able to access the type of hearing most appropriate for them, which research suggests may often be in-person hearings. I am sure that the Minister agrees with me that as we progress with changes to court processes, we must not negatively affect access to justice for any group of court users with particular needs. I would welcome his thoughts on how we can ensure that does not happen.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is good to have you back in the Chair, Sir Mark. I hope that we will make diligent progress this afternoon.
As the hon. Member for Stockton North said, both amendments would provide options for a person to participate in a hearing via non-electronic means. Amendment 59 would give those participating the option, while amendment 90 would require someone who had a physical or mental condition preventing them from understanding or effectively participating in online proceedings to participate in a hearing via non-electronic means.
The online procedure rule committee will make simple and consistent rules that provide simple processes that can be followed by the average court user. We have seen an increase in online proceedings in response to the pandemic—I will say more on that when speaking to clause stand part. Her Majesty’s Courts and Tribunals Service is moving towards digital services being the default, but we absolutely understand that not everyone will choose to participate in a hearing by electronic means.
I will emphasise specific clauses. In many ways, it is a disappointment that my right hon. Friend the Member for South Holland and The Deepings is not here, because he would have been greatly reassured by the clauses. He has obviously struggled to get here for an in-person sitting—perhaps we could have held it online, but unfortunately that option is not available at the minute, which is a shame for my right hon. Friend. I have no doubt that he has a good reason for being absent.
Clause 18(6) states:
“Where Online Procedure Rules require a person—
(a) to initiate, conduct or progress proceedings by electronic means, or
(b) to participate in proceedings, other than a hearing, by electronic means,
Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
The key thing is that the rules reply entirely to civil cases—civil, family and tribunals. Those are the jurisdictions to which those particular rules apply. It is not obvious how there would be a situation where someone who had legal representation would not be able to participate online given that practitioners should, for obvious reasons, be able to participate online.
Furthermore, subsection (7) states:
“Where Online Procedure Rules require a person to participate in a hearing by electronic means, Online Procedure Rules must also provide that a court or tribunal may, on an application or of its own initiative, order or otherwise direct that person, or any other person, to participate by non-electronic means.”
Well—[Interruption.] My right hon. Friend has duly arrived, and I say to him that one of the downsides of physical sittings and in-person hearings is that one is subject to the whims of chronological events, to put it bluntly, and unfortunately he has missed a great bit of the Bill, which I read out not just for him but primarily because it is relevant to the amendments from the hon. Member for Stockton North, the Opposition spokesperson. The Bill shows that where one is represented, one would be able to request a physical or in-person hearing.
There could be a number of reasons why someone would chose to participate in a hearing by a means other than electronic. Her Majesty’s Courts and Tribunals Service provides a support service over the phone as well as more intensive face-to-face support for those who might require it, such as vulnerable users who might not otherwise be able to participate in proceedings effectively or those who are digitally excluded. HMCTS has also awarded a national contract to deliver positive and practical solutions to support users and break down the barrier of digital exclusion across civil, family and tribunal jurisdictions. Through this contract, support will be available in person and remotely through a network of delivery partners who are experienced in supporting users of justice services. As per the specification, the services will be delivered across different channels to ensure that all those who require them can access them. Those channels would include local-centre support in more than 300 physical sites, over-the-phone support, remote video appointments with those who have access but need support in navigating the service, and in-home face-to-face support with necessary equipment. HMCTS has considered forms of support that can be provided to the user throughout their online proceedings.
I recently visited Isleworth Crown court where the citizens advice bureau was actively involved in providing services to witnesses. It is conceivable that the physical roll-out of these support services could be provided on a sub-contracted basis by a range of organisations. The point is that that is precedented and it works to provide effective support on the ground to vulnerable users.
Most importantly, as I have said, the measures in the Bill also ensure that paper form will remain available for citizens participating in proceedings, so an offline option will always be available for those who need it, not least my right hon. Friend the Member for South Holland and The Deepings.
Sir John Hayes (South Holland and The Deepings) (Con)
I am delighted to have come hotfoot from a discussion with one of the people who gave evidence to the Committee, Professor Ekins, who shares my view that the Bill should be widened to deal with matters of parliamentary sovereignty and other issues. We were debating how the new clauses that stand in my name and those of my hon. Friends might be recast to ensure that they are in scope. On the point that my hon. Friend the Minister raises, the key is that the move to online should not be obligatory. Sir Mark, I was making the argument earlier, as were one or two others on the Committee, that vulnerable people, in particular, might struggle with a purely online system and that they needed some protection from the effects of a system that could become exclusively online. Is the Minister giving the reassurance, which would certainly satisfy me, that this will not be obligatory and that there will be an option for people who wish to do so to appear before a court in the traditional way and to make representations accordingly?
James Cartlidge
I am glad that the reason for my right hon. Friend’s delay was that he is so proactive he was working to amend earlier parts of the Bill, which we will presumably come to after all the other clauses. To allay his concerns and for his benefit, I will repeat the quote because I think it is important. Clause 18(6) states:
“Where Online Procedure Rules require a person—
(a) to initiate, conduct or progress proceedings by electronic means, or
(b) to participate in proceedings, other than a hearing, by electronic means,
Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
To be clear, if a person is legally represented, there is no reason that a legal firm would not be able to participate electronically, and that is why the clause says
“if the person is not legally represented”.
I remind the Committee that those rules apply entirely to civil and family tribunals, not to criminal proceedings. That is a different part of the Bill. I hope that has reassured my right hon. Friend that there will always be choice.
As I have already stated in reference to previous amendments, there is a range of support in place. We have just set up a national contract which will deliver not only telephone and web-based support, but physical, in-person support, of the kind that we see in our courts and other physical locations around the country. There is a wide range of measures.
Sir John Hayes
I am extremely grateful to the Minister, both for giving way and for that assurance. He is right that our endeavour in the Bill is to increase efficiency, free up court time and make the system run more smoothly. I was discussing that with hon. Members earlier, and I share that view. My fear was that the most vulnerable of our countrymen might be disadvantaged, but my hon. Friend has reassured me that that will not be the case because the measures will not be obligatory. “There will always be choice” were his words. Let those words ring out in the Committee and assuage the fears that I articulated on behalf of the most needy.
James Cartlidge
I am grateful to my right hon. Friend. As a Conservative, he is, of course, a champion of choice at the forefront of public policy—
James Cartlidge
Of course—and the needy. They are both important. Given the safeguards in place and the fact that an offline option is already available, I do not think the amendments are necessary. I therefore urge the hon. Member for Stockton North to withdraw them.
Alex Cunningham
The theory is all well and good. I hope that, in practice, the service is delivered to the standard the Minister believes is possible. He has had our demands for quality support and flexibility for vulnerable people ringing in his ears for several days now. The right hon. Member for South Holland and The Deepings—who I thought had acquired a red box earlier this afternoon, but it is not quite the right colour—has joined the fray in championing vulnerable people, and I welcome the reassurances he has received from the Minister.
I want to expand slightly and talk a bit about the citizens advice bureaux and the tremendous support they give not only in courts across the country, but to people in my constituency in Stockton. I am interested to know how the services will be designed for the future. The Minister has talked about 300 hubs; he has talked about the CAB and others, as well. How will those services be delivered to ensure that people are properly covered with the necessary support? The comments from the Minister are clear and the theory is clear. We just want to see it in practice. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to consider that schedule 3 be the Third schedule to the Bill.
James Cartlidge
I intended to use part of the stand part debate to address some of the concerns from my right hon. Friend the Member for South Holland and The Deepings about the impact on those who are less acquainted with the digital sphere. To be fair, that also addresses some of the points from the hon. Member for Stockton North.
Alex Cunningham
There is no doubt that electronic systems have already made a great difference within our Courts and Tribunals Service and I am sure that they will continue to do so in the future. However, as the Minister well knows, it is a case of ensuring that those at the margins—the vulnerable and the excluded—do not lose out in terms of justice as we go forward. Given the crisis in our courts, there is no doubt that we desperately need solutions, and the electronic solutions are part of that process, but again we want to ensure that the support within the system for everybody is correct and that justice is done.
The Minister has talked about various organisations that will be engaged in the process, but we look forward to seeing the system operating—perhaps he and I could go together when it is—to listen to people about its operation and make sure that what we have delivered in this new legislation is practical and that the most vulnerable people are still being looked after.
James Cartlidge
When we meet to discuss the single justice procedure—a meeting that I was more than happy to agree to—we can talk about how we can look at things. There will obviously be ongoing reviews. It is important that we get this issue right—by ensuring that it has been through a tender, for example.
Sir John Hayes
We have teased out important things from this debate. Would the choice that my hon. Friend the Minister mentioned earlier apply to witnesses, too? I am thinking of a blind person who has heard something or a deaf person who has seen something that might provide vital evidence, both of whom would struggle with the conventional online model. Will provision will be made for them to exercise, as witnesses, the sort of choice that he described earlier?
James Cartlidge
I can absolutely confirm that to my right hon. Friend. At the moment, we are talking about civil cases; he is absolutely right that those people could be witnesses in those, of course.
I stress that the matter would be at the discretion of the courts, without a shadow of a doubt, but I think there will be far more cases of vulnerable witnesses where technology assists the process. The obvious example is section 28 proceedings, in which evidence can be recorded in advance of the actual in-person hearing; they have become a very important part of the justice system. The Secretary of State has set out his desire for them to be rolled out more broadly. In a way, my right hon. Friend makes the point for me: technology in such cases can be of great assistance, and we are applying it to intimidated witnesses as well.
Alex Cunningham
The Minister mentioned section 28 proceedings and the recording of evidence. During consideration of the Police, Crime, Sentencing and Courts Bill, the Opposition tabled a number of amendments in that particular area, to expand the use of the process. Given that the new Minister is a fan, will he look at the issue with his colleagues in the Lords to see whether there are ways in which we can expand the service to the benefit of the sorts of people who the right hon. Member for South Holland and The Deepings just spoke about?
James Cartlidge
There are two points to make on that. First, the specific point about the Bill’s progress in the Lords is a matter for Lord Wolfson, who is an excellent Minister; I effectively shadow him on the areas for which he is responsible. However, the hon. Gentleman should be assured of the Lord Chancellor’s commitment to section 28 proceedings following his comments in media interviews. There is widespread support for them among the relevant victims’ groups and charities.
Of course, there are practical issues that we need to consider, but, as I have said, there is widespread agreement about this issue. Using such technology can be very important in enabling and assisting vulnerable witnesses.
Alex Cunningham
I am in danger of drifting back to the other Bill that I mentioned, but we were also talking about how potential witnesses, in some circumstances, would be interviewed. For example, at the moment they may be interviewed by a non-legal person; in other words, there might not be a legal representative, either for the prosecution or the defence, carrying out the interview in those circumstances. Would the Minister be prepared to look at that?
James Cartlidge
With respect, I think that does stray too far into the specifics of the measure. It was a nice try, but I was setting out the principle that technology has assisted access to justice in the context of those who are vulnerable—the sorts of people who we would have in mind in discussing precisely these provisions.
I agree about the importance of in-person proceedings where it matters most. The most obvious example for all of us is that, like my right hon. Friend the Member for South Holland and The Deepings and others on this side of the Committee, I passionately wanted Parliament to return to its normal ways of working at the earliest safe moment, because we could not intervene on each other when we were on a TV screen.
It is not democracy when arguments are not challenged. It gives me a great thrill to take an intervention from the Opposition side that I have to try to answer. That is how we thrash out and debate an argument. It is sub-optimal to have it online and optimal to have it in person, but there will be many aspects of life, and many aspects of legal proceedings, that can be perfectly competently and satisfactorily conducted online.
By maximising those aspects, we maximise the in-person resource for the things that really matter. On the criminal side, that is clearly criminal trials, particularly jury trials in the Crown court. On the civil side, that could be complex cases, such as family cases, that need to be heard in person. By maximising the use of technology, we liberate more of that resource, so it is important to support the measure.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Schedule 3 agreed to.
Clause 19
“Specified kinds” of proceedings
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 19 provides for online procedure rules to be made in relation to civil, family or tribunal proceedings specified by the Lord Chancellor. It enables the Lord Chancellor to specify in regulations such proceedings by reference to, among other matters, the legal or factual basis of the proceedings, the value of the matter in issue, and the court or tribunal in which the proceedings would be brought.
The regulations, which will require the concurrence of the Lord Chief Justice and, where tribunal proceedings are involved, the Senior President of Tribunals, and which will be subject to the affirmative resolution procedure, will accordingly govern the scope of application for any online procedure rules. They may provide safeguards, for instance, by setting out circumstances in which a party to proceedings may choose whether to use the online procedure or circumstances where proceedings of a specified kind may not be governed by online procedure rules.
We envision that there is likely to continue to be a need for a parallel paper-based procedure for those who are digitally excluded. That would act as a safeguard for the majority of claims that remain within the scope of the online procedure.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Provision supplementing section 18
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 20 allows for provision to be made about the circumstances in which a party to proceedings may have a choice whether to use the online procedure or the appropriate alternative civil or family court or tribunal procedure to which the standard rules apply. Provision may also be made for excluded cases to which online procedure rules are not to apply and for circumstances in which proceedings may cease to be subject to online procedure rules or, conversely, may become subject to them even though they were not initially. That will enable flexibility, so that the most appropriate procedure can apply to any given proceedings or part of proceedings thereof.
Regulations under the clause will require the affirmative resolution procedure. Before making any regulations under the clause, the Lord Chancellor must secure the concurrence of the Lord Chief Justice or, if the regulations concern tribunal proceedings, the Senior President of Tribunals.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
The Online Procedure Rule Committee
Alex Cunningham
I beg to move amendment 28, in clause 21, page 37, line 28, leave out “(3)” and “(4)” and insert “(3), (4) and (4A)”.
This amendment is consequential to Amendment 29.
The Chair
With this it will be convenient to discuss the following:
Amendment 60, in clause 21, page 37, line 38, at end insert—
“(c) one person who is an ‘authorised court and tribunal staff member’ as defined by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.”
This amendment would require the Lord Chief Justice to appoint an authorised court and tribunal staff member to the Online Procedure Rules Committee.
Amendment 61, in clause 21, page 38, line 5, leave out “one person who has” and insert “two people who have”.
This amendment will expand the membership of the OPRC to include two IT experts.
Amendment 29, in clause 21, page 38, line 6, at end insert—
“(4A) The Lord President of the Court of Session is to appoint one person with experience in and knowledge of the Scottish legal system.”
This amendment would require the Online Procedure Committee to include a person with experience in and knowledge of the Scottish legal system, appointed by the Lord President of the Court of Session.
Amendment 62, in clause 21, page 38, line 6, at end insert—
“and;
(d) one person who has experience representing the views of people who are digitally excluded.”
This amendment will expand the membership of the OPRC to include someone with experience representing the views of people who are digitally excluded.
Amendment 91, in clause 21, page 38, line 6, at end insert—
“(d) one person who has experience in, and knowledge of, accessible service design”.
This amendment would increase the membership of the Online Procedure Rule Committee by requiring the Lord Chancellor to appoint a person with expertise in accessible service design.
Amendment 64, in clause 21, page 38, line 25, at end insert—
“(9A) In making appointments under subsections (3) and (4) above, the Lord Chancellor and the Lord Chief Justice must have due regard to the ethnic and gender balance of the Online Procedure Rules Committee.”
This amendment would require the Lord Chancellor and the Lord Chief Justice to have due regard to the ethnic and gender balance of the Online Procedure Rules Committee when making their appointments.
Alex Cunningham
I move the amendment on behalf of the hon. Member for Glasgow North East, who is unable to be here this afternoon.
Clause 21 sets out the membership of the online procedure rule committee and makes other provisions—for the Lord Chancellor to reimburse expenses of members appointed to it, for example. Under the clause as it is currently drafted, the online procedure rule committee would have just six members. Three of them would be judicial appointments made by the Lord Chief Justice and would include the chair of the committee. The other three appointments would be made by the Lord Chancellor and drawn from elsewhere in the legal profession, the lay advice sector and those with professional experience of online portals.
I understand that the number of committee members and the qualifications and experience that they must have can be modified. As the Bill is currently drafted, that would be done by regulations under the negative procedure, although regulations cannot be made until the agreement of the Lord Chief Justice and the Senior President of Tribunals has been secured, and only after consulting other specified members of the senior judiciary. Even though the Bill contains a provision to change the rules governing the committee’s membership, I think the initial set-up as provided for by clause 21 is very unusual for its small size and, as a consequence, the limited amount of experience that would be covered by the committee.
I recall the evidence of Richard Leiper from two weeks ago. I am going to quote him at length because he captures in a few sentences what is wrong with the Government’s proposals. He said:
“The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members. To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough. That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.
For example, I have no knowledge at all about family court proceedings—how they begin, how they proceed, or what the interests of the various parties would be. Yet, if there is just one practitioner, who could be a barrister, a solicitor or a legal executive—each of whom have different perspectives on how the system operates, how it impacts on clients, other parties and so forth—there will not be the wealth of knowledge, even with consultation with people who do know, to enable effective online rules. The composition of the committee is my single greatest concern.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 37, Q41.]
That is clear and wise counsel, I would say. The concern that Mr Leiper expressed is shared by many in the sector and, indeed, by the Opposition. I thank the Public Law Project, JUSTICE and the Legal Education Foundation for their expertise and constructive assistance in scrutinising this clause. This set of amendments looks at the membership of the online procedure rule committee, mostly with a view to expanding it to include additional professionals with relevant experience. I would be interested to hear from the Minister in relation to each amendment whether it represents the kind of regulation change that he anticipates may be brought in via the negative procedure.
Amendment 60 would require the Lord Chief Justice to appoint an authorised courts and tribunals staff member to the online procedure rule committee. JUSTICE has recommended that the OPRC should feature an authorised courts and tribunals staff member, as defined in the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. The effect of that 2018 legislation is to allow individual rule committees to delegate functions that were traditionally judicial in nature to non-judicial court staff.
For example, in the context of the online court, JUSTICE understands from HMCTS that the pilot of legal advisers within that service will allow them to make various procedural determinations, including case progression directions, for defending claims. Given the extent to which procedural functions in online courts are to be delegated to authorised courts and tribunals staff and the concomitant need for those staff to understand and apply relevant procedural rules, would it not be prudent to include their voice in the drafting of the relevant rules? The Opposition agree that that would be a very sensible addition to the OPRC, and I hope the Minister will agree.
Amendment 61 would further expand the membership of the OPRC to include two IT experts, where now it only includes one. As it stands, the Bill places significant responsibility on a lone information technology expert. As the Public Law Project puts it,
“To imply that there is one information technology expert who can be the source of truth for digital procedure is incorrect as there are lively debates in that sphere.”
Limiting the committee to only one information technology expert presents a risk that a particular view of the capability and role of information technology in the justice system will take precedence. We think that expanding the Committee to include a wider range of expertise in information technology and internet portals would be a valuable contribution to ensuring that the online procedure rules are suitably futureproofed.
Amendment 62 would again expand the membership of the OPRC—this time, to include someone with experience representing the views of people who are digitally excluded. Currently, the online procedure rule committee does not include any members who would be able to represent the views of digitally excluded people or have expertise in the specific challenges that digitally excluded people might encounter if they needed to be a party to proceedings under the online procedure.
I spoke about this issue in our debate on clause 18, but I will stress the point again. In making the online procedure rules, it is important that we do not negatively impact access to justice for those with vulnerabilities or conditions, or who are digitally excluded for any reason. I think this would be a most important voice on the committee and I hope that the Minister will agree with me that it would add great value to its work.
Amendment 91 would increase the membership of the online procedure rule committee by requiring the Lord Chancellor to appoint a person with expertise in accessible service design. Again, we believe this would be an extremely valuable perspective to include on the committee.
I know the Minister wants these reforms to have a positive impact on justice; including a professional with experience in accessible service design would ensure that the online procedures can be used by the widest range of persons possible, which is surely an aim that the Government share with us. As I said earlier, I am keen to hear from the Minister on whether his Department has considered the addition of any such members to the Committee. If not, is it something he foresees being introduced under the negative procedure as outlined in the Bill? If the latter is true, I suggest that an easier route would be to include them now in the primary legislation.
Amendment 64 is slightly different. It would require the Lord Chancellor and the Lord Chief Justice to have due regard to the ethnic and gender balance of the online procedure rule committee when making their appointments. I understand that in Committee and on Report in the Courts and Tribunals (Online Procedure) Bill, Lord Beecham tabled an amendment, introducing a requirement that
“The Lord Chancellor must ensure that gender balance is reflected on the Online Procedure Rule Committee.”
Amendment 64 is tabled in that spirit, but goes further, adding that the racial diversity of the committee must also be considered.
JUSTICE’s working party report, “Increasing Judicial Diversity”, found that reducing homogeneity in the legal system is important for both legitimacy and quality of decision making. Ensuring gender balance in the creation of new rules committees would serve as a positive step towards that aspiration. However, the Opposition agree that there is no reason why that should be prioritised any more than racial diversity, especially given the dreadful disparities in the legal profession.
A recent report by the race working group of the Bar Council found that barristers from ethnic minority backgrounds, particularly black and Asian women, face systemic obstacles to building and progressing a sustainable and financially rewarding career at the Bar. Indeed, they found that a black female junior barrister with the same level of experience as a white male junior bills £18,700 a year less on average, and an Asian woman £16,400 less. That is clear evidence that addressing racial diversity within the legal profession must be an urgent priority for the Government. The amendment provides one opportunity to address some of these disparities, and I hope the Minister will take it.
James Cartlidge
The amendments in the group all relate to the membership of the new online procedure rule committee. The Bill provides for a committee of six members, of whom three are judicial members appointed by the Lord Chief Justice and three are non-judicial members appointed by the Lord Chancellor. The range of members will ensure that the new committee will have expertise in the law and the provision of lay advice and information technology. That will equip it to produce straightforward, easily understood court rules, which will support the online procedure.
When the committee comes to develop rules for courts and tribunals, it will be able to consult or seek advice from those with relevant qualifications, and create working groups including persons with relevant experience and expertise, such as in service design or representing those who are digitally excluded. That is in line with how existing rule-making committees work.
The committee is specifically designed to be small and agile in its decision making. Adding additional members at the outset will detract from that. Any need for additional expertise to inform the committee’s decision-making process that may become apparent through experience can be addressed through the power in clause 23, which enables the Lord Chancellor to amend clause 21 to change the required membership of the committee. I suggest that a more flexible approach would be preferable to adding the additional members proposed in amendments 60 to 62 and 91.
Amendments 29 and 28 would require the online procedure committee to include a person of experience and with knowledge of the Scottish legal system appointed by the Lord President of the court of session. The OPRC will be responsible for making rules across civil and family courts in England, Wales and the specified tribunals. The vast majority of the committee’s work, certainly at the outset, is likely to concern procedure for online court proceedings in England and Wales for which a dedicated member of the committee specifically with expertise in Scottish law would, with respect, not be so well equipped to contribute.
When the committee comes to develop rules for tribunals, which would currently include Scottish employment tribunals, it will be able to consult or seek advice from those with relevant qualifications, and to create working groups including persons with relevant experience and expertise. This is in line with how existing rule-making committees work. The need for a distinct Scottish contribution in the decision-making committee through membership can be addressed through the power in clause 23, which enables the Lord Chancellor to amend clause 21 to change the required membership of the committee. That is a better solution than requiring a Scottish member at the outset, since work is continuing towards the devolution of tribunals for Scotland.
Amendment 64 would require the Lord Chancellor and the Lord Chief Justice to have due regard to the ethnic and gender balance of the online procedure rule committee when making their appointments. We can all agree that, as the refreshed public appointments diversity action plan states, drawing public appointees from all aspects of the society that they serve
“will improve the quality of our public services overall.”
I do not, however, consider it necessary to include the specific duty embodied in this amendment in the appointment process for this rule committee alone. Compared with the other committees that, like the online procedure rule committee, are covered by the action plan and the governance code for public appointments under the supervision of the Commissioner for Public Appointments, the OPRC is designed to be small and agile to address rules that can be updated quickly, keeping step with technology changes to meet the expectations of 21st century court users.
The OPRC requires a range of expertise to complement new technology and online working. When making appointments to the OPRC, the Lord Chancellor and Lord Chief Justice will follow the standard process in line with the civil procedure rule, family procedure rule and tribunal procedure rule committees.
I hope I have reassured the hon. Gentleman about the proposed membership of the committee, and that the Bill has built in significant flexibility should its expertise not be sufficient. I therefore urge the hon. Gentleman to withdraw the amendment.
Alex Cunningham
I am grateful to the Minister for his response and for addressing the Scottish amendments. I attached some notes on that to the end of the wrong speech, but I was going to speak briefly to it because our Scottish colleagues—I am Scottish myself, of course—from the SNP made the point that there was no real representation of the Scottish legal profession. The Minister has, however, already addressed that.
I am disappointed that the Minister does not recognise how such a small committee may not have the length and depth of expertise that is required to carry out the jobs that he requires of it. To have one IT expert and just one appointed judge strikes me as totally inadequate in the circumstances. While we will not press the amendment to a vote, the Minister needs to take that away and think again. I have not come across anybody within the sector who does not think that this committee is potentially weak, and will not be able to do the job that it is required to do. We hope that the Minister will take this issue away and look at it again in the spirit that we intend.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Cunningham
I beg to move amendment 63, in clause 21, page 38, line 14, at end insert—
“(6A) Before appointing a person under subsection 3(c) the Lord Chief Justice must—
(a) consult the Lord Chancellor, and
(b) obtain the agreement of the Senior President of Tribunals.”
This amendment makes the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.
I will be briefer in dealing with this amendment than I have been on anything else. This straightforward amendment relates to amendment 60, and would make
“the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.”
As I said in my previous speech, the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 allows individual rule committees to delegate functions that were traditionally judicial in nature to non-judicial court staff. Therefore, we think it would be appropriate to appoint this member in line with the process for the members appointed under subsection 3(b) of clause 21.
James Cartlidge
This amendment would make
“the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.”
As I said when we discussed the previous group of amendments, the committee is to be comprised of six members: three are judicial members, to be appointed by the Lord Chief Justice, and three are non-judicial members, to be appointed by the Lord Chancellor. To alter the composition of the OPRC, the Lord Chancellor is required to consult the Lord Chief Justice and the Senior President of Tribunals. That requirement is in line with the existing rule-making committees. The reason for including this power is that, as the scope of the online procedure rules increases, it may be necessary to expand the committee’s membership or widen its expertise in order to assist in making rules for different online procedures. I therefore urge the hon. Member to withdraw his amendment.
Alex Cunningham
I am pleased to hear the Minister talk about the possibility of the committee being expanded in future, and the process for doing so. That is heartening: it is certainly something that needs to be looked at. In those circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
To recap, clause 21 provides for the membership of the online procedure rules committee and its powers. It also includes the procedure for appointing members. The committee is to comprise six members, of whom three are to be appointed by the Lord Chief Justice: one person who is a judge of the senior courts of England and Wales, and two persons, each of whom is either a judge of the senior courts of England and Wales; a circuit judge or district judge; a judge of the first-tier tribunal; a judge of the upper tribunal; an employment judge; or a judge of the employment appeal tribunal—a fair selection. The Lord Chancellor is to appoint the committee’s non-judicial members: one person who is a barrister in England and Wales, a solicitor of the senior courts of England and Wales, or a legal executive; one person who has experience in, and knowledge of, the lay advice sector; and one person who has experience in, and knowledge of, information technology related to end users’ experience of internet portals.
Before appointing a person, the Lord Chief Justice must consult the Lord Chancellor, and must also consult the Senior President of Tribunals or—in the case of a person to be a tribunal judge member—secure the agreement of the Senior President of Tribunals. Similarly, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals and, in the case of a practitioner member, must also consult the relevant authorised body. The range of members for which this clause provides will ensure that the new rule committee will have expertise in the law, the provision of lay advice, and information technology. This will help equip it to produce straightforward, easily understood court rules, which will support the online procedure, which, as far as possible, will be embedded in the online software.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22
Powers of the Online Procedure Rule Committee
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 22 provides that the online procedure rules committee has the same rule-making powers that are available to the civil, family and tribunal rule committees. It will therefore have the full range of powers appropriate to any proceedings for which it may make online procedure rules. The committee may also apply any other rules of court. That is to ensure that any rule that is included in the current civil, family and tribunal rules and other rules of court may be used and modified as appropriate to ensure that the online procedure may operate as intended. It does not, however, enable the committee to make procedure rules for procedures that are not subject to the rule-making powers specified in the clause. For example, it may not make online Court of Protection rules because the clause does not give it power to do so.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Clause 23
Power to change certain requirements relating to the Committee
Alex Cunningham
I beg to move amendment 92, in clause 23, page 41, line 14, leave out subsection (5) and insert—
‘(5) Regulations under this section are subject to affirmative resolution procedure (see section 45(3)).”
This amendment would make regulations under clause 23 subject to the affirmative resolution procedure.
The Chair
With this it will be convenient to discuss the following:
Amendment 93, in clause 24, page 41, line 38, leave out subsection (7) and insert—
‘(7A) A statutory instrument containing Online Procedure Rules is subject to affirmative resolution procedure (see section 45(3)).”
This amendment would make SIs containing Online Procedure Rules subject to the affirmative resolution procedure.
Amendment 65, in clause 25, page 42, line 5, at end insert—
‘(1A) The written notice under subsection (1) is subject to the concurrence requirement (see section 30(1)).”
This amendment would make the Lord Chancellor’s power to require the Online Procedure Rules Committee to make rules to achieve a specified purpose subject to the concurrence requirement.
Amendment 68, in clause 26, page 42, line 20, leave out subsection (3) and insert—
‘(3) Regulations under this section are subject to the concurrence requirement (see section 30(1)).”
This amendment would make the Lord Chancellor’s power to make amendments in relation to the Online Procedure Rules subject to the concurrence requirement.
Amendment 94, in clause 26, page 42, line 25, leave out “that amend or repeal any provision of an Act”
This amendment would make all regulations under clause 26 subject to the affirmative resolution procedure.
Amendment 95, in clause 26, page 42, line 27, leave out subsection (6)
See Explanatory Statement for Amendment 94.
Amendment 66, in clause 30, page 43, line 17, after “regulations” insert “or notices”
This is a consequential amendment to include a notice given to the Online Procedure Rules Committee to make rules to achieve a specified purpose within the concurrence requirement.
Amendment 67, in clause 30, page 43, line 21, after “regulations” insert “or notices”
See Explanatory Statement for Amendment 66.
Alex Cunningham
Members of the Committee may be relieved to learn that this will be my final speech on chapter 2.
Clause 23 makes provision for how certain changes relating to the online procedure rules committee can be made. Concern has been raised that the breadth of powers provided to the Lord Chancellor by the online procedure rules provisions in the Bill as drafted is vast, and that there is therefore a danger of a democratic deficit.
Currently, the Lord Chancellor has the power to specify which proceedings will be made subject to the online procedure rules under clause 19; designate exceptions or circumstances where proceedings may be conducted by the standard procedure rules rather than online procedure rules under clause 20; appoint OPR committee members under clause 21; change the composition requirements of the OPR committee under clause 23; allow or disallow online procedure rules made by the OPR committee under clause 24(3); require online procedure rules to be made under the terms of clause 25; and under clause 26(1) the Lord Chancellor may
“by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”
That is quite a raft of powers for the Lord Chancellor.
The Lord Chancellor’s powers under clauses 19, 20 and 23 are subject to the concurrence of the Lord Chief Justice or the Senior President of Tribunals, depending on whether the regulations relate to proceedings in the courts or tribunals. This is the “concurrence requirement”. However, the power in clause 26 is subject only to a requirement to consult the Lord Chief Justice and Senior President of Tribunal, while the power to require OPRs to be made in clause 25 is subject to neither a consultation nor a concurrence requirement.
Clause 26 has caused particular concern to some. I note that Joshua Rozenberg has observed that this clause differs in this Bill from its earlier forms in the Courts and Tribunals (Online Procedure) Bill and the Prisons and Courts Bill, in which there were more stringent limits on the ability of this power to be used to amend future Acts of Parliament. Mr Rozenberg described the refinement of the drafting as “Henry VIII mission creep”. He said:
“Let's imagine that parliament passes new legislation of some sort in 2030. There is a change of government in 2035 and the new lord chancellor thinks the 2030 legislation gets in the way of procedural rules that the incoming government wants to introduce. Using legislation passed in 2022, the lord chancellor will have power to sign an order in 2035 which, if all goes to plan, will repeal legislation made by parliament in 2030. It’s no excuse to say that this is very unlikely to happen — and the clauses are simply included just in case. Having got a foot in the door, ministers are pushing it a bit further open every time they try. Soon, they'll be pushing at an open door. If they really need to amend or repeal an act of parliament, ministers should take the trouble to bring forward legislation in the normal way.”
I certainly agree.
In our evidence session, I asked Richard Leiper about this democratic deficit, and he said that yes, there was something of a democratic deficit, but that his personal view was that
“it seems to reflect the processes that are already in place into the existing procedure rule committee. This appears to have been the accepted approach since about 2005, and it seems to be replicating that.”
He went on:
“It does seem to give a substantial power to the Lord Chancellor in this regard, which I personally find surprising. However, it seems to be the way that things have operated for some time.”–[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 39, Q45.]
For me, that does not make it right, even if it does go back to 2005 and a Labour Government.
I appreciate that clauses 25 and 26 mirror the approach taken with other procedure rule committees. I would say that is no reason not to get it right first time.
Even the Government have recognised that the broad powers provided to the Lord Chancellor in this part of the Bill could have a significant impact on access to justice, and have therefore decided that some of those powers should be subject to the requirement to obtain the concurrence of the Lord Chief Justice and Senior President of Tribunals. Indeed, the concurrence requirements in clauses 19 and 20 were brought forward by the Government in the Courts and Tribunals (Online Procedure) Bill, on Report, to address concerns that the Bill conferred broad powers on Ministers in particular to limit oral hearings in an extensive range of cases.
The amendments that the Opposition have tabled make provision for two additional mechanisms in this process, allowing for greater scrutiny and accountability of decisions that the Lord Chancellor makes. The first mechanism is covered by amendments 65 to 68, which would make the Lord Chancellor’s power to make rules to achieve a specified purpose and to make amendments in relation to the online procedure rule subject to the concurrence requirement—that is, the powers covered by clauses 25 and 26.
As Lord Judge pointed out when the Courts and Tribunals (Online Procedure) Bill was at Report stage, it is inconsistent with clauses 19 and 20 of this Bill, which are subject to the concurrence requirement, that the power to require OPRs to be made in clause 25 and the broad Henry VIII power to make consequential or facilitative amendments in clause 26(1) are not also subject to the concurrence requirement. Clauses 25 and 26, taken together, give too much power to the Lord Chancellor: they enable the Lord Chancellor to, as Lord Judge put it,
“overrule the very rules which were made with the concurrence of the Lord Chief Justice”.—[Official Report, House of Lords, 24 June 2019; Vol. 798, c. 956.]
The Opposition’s amendment is a simple extension of a safeguard that the Government already recognise is appropriate for these types of powers, so I hope the Minister can support our aim here.
The second mechanism is covered by amendments 92 to 95, which would make regulations made under the powers of clause 23 and statutory instruments containing online procedure rules subject to the affirmative resolution procedure, rather than the negative resolution procedure, as the Bill currently allows for. This will provide a different type of safeguard, in that it would allow for greater parliamentary scrutiny of the online procedure rules. I look forward to the Minister’s response.
James Cartlidge
The amendments in this group all relate to the powers granted to the Lord Chancellor through the legislation. I start with amendment 92, which would require the regulations made by the Lord Chancellor to change the composition of the membership of the online procedure rule committee to be subject to the affirmative resolution procedure. The arrangements for making changes to the membership of the committee are the same as those that apply to the Civil Procedure Rule Committee, the Family Procedure Rule Committee and the Tribunal Procedure Rule Committee and reflect the existing responsibilities of the Lord Chancellor, the judiciary, the committee and Parliament in making procedure rules.
Any regulations changing the Committees’ membership must be agreed by both the Lord Chief Justice and the Senior President of Tribunals. Before making them, the Lord Chancellor is also required to consult other senior members of the judiciary. The regulations must be laid before Parliament and may be subject to debate if either House wishes. That is, I would suggest, an appropriate level of control and scrutiny, as it is for all the other rule committees, and there is no good reason for treating the online procedure rule committee differently in that regard. The amendment is unnecessary, as the arrangements under clause 23 reflect the existing constitutional arrangements, and I therefore urge the hon. Member for Stockton North to withdraw that particular amendment.
Similarly, amendment 68 would require the Lord Chancellor to secure the concurrence of the senior judiciary to, rather than to consult them on, regulations amending, repealing or revoking any enactment. I should start by stressing that this power is designed to allow the Lord Chancellor to make minor revisions or consequential amendments to legislation to support or facilitate the making of online procedure rules.
The provision mirrors the arrangements in place for the Civil Procedure Rule Committee and the Family Procedure Rule Committee, which require the Lord Chancellor to consult the Lord Chief Justice before making regulations of this nature. It is therefore in line with the respective constitutional roles of the Lord Chancellor and the judiciary for the making of procedure rules.
Alex Cunningham
I am grateful to the Minister for his response. As I outlined at the beginning of my speech, this is a huge power grab by the Executive.
Alex Cunningham
The Minister laughs and shakes his head, but it is a huge power grab by the Executive, which is all the more reason why we need to ensure that there are protections in the Bill for people within the system. I also say to the Minister that, as I pointed out in my speech, there is a lack of consistency in the approach in different parts of the Bill. I suspect that the Government may well have to repeat some of the work that they have done on the online procedure rule committee, so they might have to correct that on Report. I will leave the Government to do that.
In trying to persuade the Minister that we should apply the affirmative procedure in a much greater way, I do not believe that, as he says, there is sufficient scrutiny by Parliament through the processes that he proposes in the Bill. Far greater powers are passed back to Parliament with the alternative procedure, but I have listened to what the Minister has said and can possibly look forward to amendments on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
To recap, clause 23 enables the Lord Chancellor to alter the composition of the online procedure rules committee in the future, but only with the concurrence of the Lord Chief Justice and the Senior President of Tribunals. The Lord Chancellor must also consult the head of civil justice, who is Sir Geoffrey Vos, the deputy head of civil justice, who is currently Lord Justice Birss, and the President of the Family Division. Any changes are made by negative resolution.
This is an important provision, because it allows the committee to change, vary or extend its membership as circumstances change and online provisions develop. It also reflects the powers available to existing rule committees. This power is useful, in that it will allow the committee to extend its membership as circumstances change. The power is precedented in other rule committees— for example, it has been used to ensure that the Civil Procedure Rule Committee and the Family Procedure Rule Committee include a judicial member with particular experience of proceedings in Wales. I recommend that the clause stand part of the Bill.
Alex Cunningham
Briefly, and with reference to what I said before, we believe that the clause leads to a democratic deficit. It is a power grab by the Executive, but we look forward to seeing how it progresses at later stages of the Bill and in the other place.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Process for making Online Procedure Rules
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 24 outlines the process for making online procedure rules, which mirrors the process by which civil procedure rules, family procedure rules and tribunal procedure rules are made. The clause requires the committee to hold a meeting before making or amending rules, unless it is inexpedient to do so, and to consult any persons that it considers appropriate. Before being submitted to the Lord Chancellor for approval, rules drafted by the committee must be signed by at least three members, with one of the signatories being the Chair, or by a majority of members. The Lord Chancellor may disallow any rules, but must give written reasons for doing so.
This safeguard reflects similar powers available to the Lord Chancellor in relation to civil, family and tribunal rules. The powers have never had to be used, but it is none the less right that an equivalent power is available in relation to the online procedure rules. It would be interesting to know whether the hon. Member for Stockton North would still think they are a power grab if they are never used. I recommend that the clause stand part of the Bill.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Power to require Online Procedure Rules to be made
Question proposed, That the clause stand part of the Bill.
James Cartlidge
The clause gives the Lord Chancellor the power to require online procedure rules to be made. The Lord Chancellor may give the online procedure rule committee written notice that he or she thinks that the online rules should include provision to achieve a specified purpose. The committee must make the rules within a reasonable period and in accordance with the procedure for making rules. The power is consistent with the Lord Chancellor’s powers for other rules committees.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Power to make amendments in relation to Online Procedure Rules
Question proposed, That the clause stand part of the Bill.
James Cartlidge
The clause gives the Lord Chancellor the power to make amendments to facilitate the making of online procedure rules. It is anticipated that it will be used to make minor revisions to legislation, for example in order to regularise and modernise terminology to match that in new rules. For making regulations, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals. Any regulations that amend or repeal primary legislation are subject to the affirmative resolution procedure and must go before Parliament for approval. Regulations that amend or repeal secondary legislation are subject to the negative resolution procedure.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Duty to make support available for those who require it
Question proposed, That the clause stand part of the Bill.
James Cartlidge
The clause requires the Lord Chancellor to make provision for those who require digital support. HMCTS is moving towards digital services being the default, but we absolutely understand that not everyone is able to use online procedures and may need assistance in starting or progressing their case online.
Digital services are designed with and for users, so that they are easy to use. That includes, for example, ensuring that services work with assistive technology, such as screen readers, and simplifying language to ensure that users understand what they are required to do. HMCTS user contact functions support users with guidance and help on their journey through a service over the phone and through related call centre channels, such as web chat. HMCTS has also awarded a national contract to deliver positive and practical solutions to support users and to break down the barriers of digital exclusion. Through the contract, support will be available in person and remotely through a network of delivery partners who have experience in supporting the users of Justice services.
The measures above seek to direct as many users as possible through the primary digital channels. However, that does not mean that non-professional users will only be able to interact digitally with the court. HMCTS will ensure—as I have explained before—that all users receive an equal service, no matter what channel they engage through. Paper forms will be kept as a channel for non-professional users and work is ongoing to review and simplify those. The use of digital applications has been made mandatory for professional users in some HMCTS services, but in all services paper forms will remain available for non-professional users.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Power to make consequential or supplementary provision
James Cartlidge
The clause details the powers of the Lord Chancellor to make consequential or supplementary amendments to legislation in relation to any other provision within chapter 2 in order to facilitate the making of the online rules. In particular, the Lord Chancellor may amend, repeal or revoke any provisions within an Act of Parliament passed before this legislation or during this parliamentary Session. In addition, the Lord Chancellor may amend, repeal or revoke any provisions within subordinate legislation, irrespective of when the legislation was made or will be made, or which Act the power to make it is contained within. It is anticipated that the power will be used to make minor revisions to legislation, for example in order to regularise and modernise terminology to match that in new rules. Any regulations that amend or repeal primary legislation are subject to the affirmative resolution procedure and must go before Parliament. Regulations that amend or repeal secondary legislation are subject to the negative resolution procedure.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Clause 29
Amendments of other legislation
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss, That schedule 4 be the Fourth schedule to the Bill.
James Cartlidge
I propose to deal with clause 29 and schedule 4 together, as the clause simply gives effect to that schedule. Schedule 4 amends existing legislation as a result of the new online procedure in courts and tribunals. Those amendments provide that the standard civil family and tribunal procedure rules must be framed to ensure that they do not apply to proceedings while they are subject to the online procedure rules. That provides clarity so that court users are aware of which set of rules apply to their case. This power will ensure that rules made by the online rule committee are not subject to, or undermined by, rules made by the other rule committees.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Schedule 4 agreed to.
Clause 30
Judicial agreement to certain regulations
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Clause 30 explains what is meant by the concurrence requirement, which the Lord Chancellor is required by a number of the preceding clauses to fulfil when making regulations. The requirement is to obtain agreement of the Lord Chief Justice and the Senior President of Tribunals when making regulations. The clause explains that the Lord Chancellor must obtain the concurrence of the Lord Chief Justice before making regulations that relate to civil or family proceedings in England and Wales, and of the Senior President of Tribunals before making regulations that relate to proceedings in the first-tier, upper, employment or employment appeal tribunals.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Interpretation of this Chapter
Question proposed, That the clause stand part of the Bill.
James Cartlidge
It is fair to say that this is not the longest speech I have given so far. Clause 31 is a technical clause and merely defines terms used in the online procedure clauses.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)
Judicial Review and Courts Bill (Eleventh sitting)
Tuesday 23rd November 2021
(2 years, 12 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 November 2021 - (18 Nov 2021)
The Committee divided: - Ayes: 4 / Noes: 10 - Question accordingly negatived.
The Chair
We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.
I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.
Sir John Hayes (South Holland and The Deepings) (Con)
Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.
Marco Longhi (Dudley North) (Con)
Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.
As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.
Tom Hunt (Ipswich) (Con)
Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.
Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.
Andy Slaughter (Hammersmith) (Lab)
Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.
The Chair
Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.
Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.
Anne McLaughlin (Glasgow North East) (SNP)
I beg to move amendment 30, in clause 47, page 54, line 34, at end insert—
“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.
(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”
This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).
I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.
May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.
I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.
We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.
The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.
James Cartlidge
Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.
The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.
The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would
“offer adequate redress in relation to the relevant defect”
and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.
On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.
When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.
In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.
Anne McLaughlin
In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anne McLaughlin
I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—
“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”
This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.
As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.
Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland
“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”
Furthermore, Liberty has also commented on the situation and has said that
“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”
I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.
James Cartlidge
The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.
To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.
I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.
The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.
With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.
If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.
On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.
Anne McLaughlin
I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.
Question put, That the amendment be made.
Question negatived.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48
Short title
Question proposed, That the clause stand part of the Bill.
James Cartlidge
I just need to check I have enough water for this one. The clause is the short title of the Bill.
Question put and agreed to.
Clause 48 accordingly ordered to stand part of the Bill.
The Chair
We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.
New Clause 3
Exclusion of review of the Investigatory Powers Tribunal
(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) Leave out subsection (8) and insert—
“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.
(9) In particular—
(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and
(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.
(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—
(a) has a valid case before it;
(b) is or was properly constituted for the purpose of dealing with the case; and
(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.
(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”
(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)
Brought up, and read the First time.
Sir John Hayes
I beg to move that the clause be read a Second time.
The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.
As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.
The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.
Anybody who understands constitutional theory and practice will know of the work of A. V. Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:
“The principle of Parliamentary sovereignty means neither more nor less than this”.
In Dicey’s words, Parliament has
“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”
Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:
“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”
Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.
The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.
In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.
The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.
Andy Slaughter
The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:
“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.
The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”
I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:
“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”
The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.
None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.
Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.
Sir John Hayes
On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.
As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.
Andy Slaughter
I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.
Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.
Andy Slaughter
That is enough, apparently—according to the Minister.
Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.
The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.
The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.
The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.
The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.
Andy Slaughter
Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.
Dr Johnson
With respect, that point is not in debate. What Lord Carnwath said is:
“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”
What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.
Andy Slaughter
No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.
Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.
As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted
“in fundamental breach of the principles of natural justice”
has been removed. The more restrictive exception of where the court acts in a way
“that constitutes a fundamental procedural defect”
has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.
The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.
Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.
Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.
Sir John Hayes
I rise to correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.
Andy Slaughter
I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.
In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.
Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.
The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.
Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.
There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.
The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.
Tom Hunt
I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.
Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.
I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.
As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.
Anne McLaughlin
I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.
I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.
I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.
Sir John Hayes
I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.
Anne McLaughlin
I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.
James Cartlidge
This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.
The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.
My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.
I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.
On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.
The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.
The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.
As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.
Sir John Hayes
I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in this Bill.
James Cartlidge
I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.
Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.
A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.
In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.
Sir John Hayes
When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.
My hon. Friend the Member for Don Valley spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:
“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.
In oral evidence, Sir Stephen Laws said:
“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]
That is pretty damning criticism of the Privacy International judgment and other recent cases.
Tom Hunt
Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.
Sir John Hayes
I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me. In any case, we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.
Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.
The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.
I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:
“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.
That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.
The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 5
Evidence in judicial review proceedings
“(1) Unless there are compelling reasons to the contrary, no court shall—
(a) permit oral evidence to be elicited in judicial review proceedings; or
(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,
(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—
(a) the proceedings concern a matter that is non-justiciable, or
(b) that an enactment excludes or limits judicial review,
(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.
(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)
Brought up, and read the First time.
Sir John Hayes
I beg to move, That the clause be read a Second time.
This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.
It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.
As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.
As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.
Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.
New clause 5 would not allow any litigation that should not. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.
One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.
The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.
Andy Slaughter
I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.
Andy Slaughter
We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.
Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.
The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.
It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:
“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”
On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.
It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.
Sir John Hayes
I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?
Andy Slaughter
With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.
Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.
In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.
In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.
Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,
“the vast majority of the cards will start in the authority’s hands”.
For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.
As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.
New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.
Tom Hunt
It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.
In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.
I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.
We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.
I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.
Anne McLaughlin
Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.
What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.
I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.
New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.
James Cartlidge
It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.
In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.
The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.
The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.
I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.
As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.
In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.
Sir John Hayes
I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.
The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.
We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,
“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”
That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.
James Cartlidge
On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.
Sir John Hayes
That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.
It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:
“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”
That is exactly the role of judicial review, by the way. He continued:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”
He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.
Andy Slaughter
On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.
I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.
May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.
Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.
We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.
James Cartlidge
Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.
I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.
This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.
It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.
Sir John Hayes
Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.
I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.
Anne McLaughlin
Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.
I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.
This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.
I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.
James Cartlidge
Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.
The Chair
I add my thanks to the Committee for its deliberations over the past few weeks; to my colleague, Sir Mark, for co-chairing the Committee with me; and to Clerks, officials, Doorkeepers and all concerned in ensuring the passage of the Bill through Committee.
Bill, as amended, to be reported.
Judicial Review and Courts Bill
Tuesday 25th January 2022
(2 years, 10 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 January 2022 - large print - (25 Jan 2022)
15:58 - The House divided: - Ayes: 187 / Noes: 315 - Question accordingly negatived.
16:14 - The House divided: - Ayes: 228 / Noes: 313 - Question accordingly negatived.
16:26 - The House divided: - Ayes: 61 / Noes: 316 - Question accordingly negatived.
00:00 - The House divided: - Ayes: 184 / Noes: 310 - Question accordingly negatived.
18:09 - The House divided: - Ayes: 176 / Noes: 316 - Question accordingly negatived.
18:20 - The House divided: - Ayes: 220 / Noes: 315 - Question accordingly negatived.
18:48 - The House divided: - Ayes: 310 / Noes: 211 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
When the shadow Minister stands up to move new clause 4, I will be grateful if others stand up to indicate whether they wish to participate in the debate on the first group of amendments.
New Clause 4
Publicly funded legal representation for bereaved people at inquests
“(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In subsection (1), after ‘(4)’ insert ‘or (7).’
(3) After subsection (6), insert—
‘(7) This subsection is satisfied where—
(a) the services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and
(b) one or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.
(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.’.”.—(Andy Slaughter.)
This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Brought up, and read the First time.
Andy Slaughter (Hammersmith) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker
With this it will be convenient to discuss the following:
New clause 5—Removal of the means test for legal help prior to inquest hearing—
“(1) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In paragraph 41, after sub-paragraph (3), insert—
‘(4) For the purposes of this paragraph, the “Financial resources” provisions at section 21 (and in The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 do not apply.’.”
This new clause would remove the means test for legal aid applications for legal help for bereaved people at inquests.
New clause 6—Eligibility for bereaved people to access legal aid under existing provisions—
“(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In subsection (4)(a), after ‘family’, insert ‘or where the individual is an Interested Person pursuant to section 47(2)(m) of the Coroners and Justice Act 2009 because of their relationship with the deceased’.
(3) In subsection (6), after paragraph (c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’
(4) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(5) In paragraph 41, after sub-paragraph (3)(c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’.”
This new clause would bring the Legal, Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of family used in the Coroners and Justice Act 2009.
New clause 8—Exclusion of review of the Investigatory Powers Tribunal—
“(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) Leave out subsection (8) and insert—
‘(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.
(9) In particular—
(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and
(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.
(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—
(a) has a valid case before it;
(b) is or was properly constituted for the purpose of dealing with the case;
(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.
(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.’
(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”
New clause 9—Evidence in judicial review proceedings—
“(1) Unless there are compelling reasons to the contrary, no court shall—
(a) permit oral evidence to be elicited in judicial review proceedings; or
(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings.
(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—
(a) the proceedings concern a matter that is non-justiciable, or
(b) that an enactment excludes or limits judicial review, no evidential duty arises on that body or person until a court determines that the matter is justiciable and that no enactment excludes or limits judicial review.
(3) In subsection (2), ‘evidential duty’ means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.
(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”
Amendment 23, page 1, line 3, leave out clause 1.
This amendment would remove clause 1 of the Bill continuing the status quo removing the provision to make quashing orders suspended and prospective-only.
Amendment 1, in clause 1, page 1, line 8, leave out from “order” to end of line 9.
This amendment would remove the provision for making quashing orders prospective-only.
Amendment 24, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”
The insertion of this subsection would limit the use of any new remedies issued under clause one to where in the court’s view it is in the interests of justice.
Amendment 31, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 2, page 1, leave out lines 15 to 18.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 3, page 2, line 2, leave out “or (4)”.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 26, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsections (3) or (4) do not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsections (3) or (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss.”
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings.
Amendment 27, page 2, line 12, leave out “must” and insert “may”.
This amendment would make clear that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.
Amendment 33, page 2, leave out lines 14 and 15.
This amendment removes one of the factors to be considered by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 34, page 2, line 17, at end insert
“including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.
This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect.
Amendment 35, page 2, line 19, at end insert
“which are to be identified by the defendant”.
This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 28, page 2, line 21, leave out
“or proposed to be taken”.
This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.
Amendment 37, page 2, leave out line 23 and insert—
“(f) the Convention rights of any person who would be affected by the decision to exercise or fail to exercise the power;
(g) the right to an effective remedy for a violation of a Convention right under Article 13 of the European Convention on Human Rights; and
(h) any other matter that appears to the court to be relevant.”
This amendment would ensure that the courts would take into account the ECHR rights of those affected, including the right to an effective remedy, before exercising the new power to suspend a quashing order or give it prospective-only effects.
Amendment 29, page 2, line 23, at end insert—
“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”
This amendment clarifies that the principle of good administration includes the need for administration to be lawful.
Amendment 25, page 2, leave out lines 24 to 32 and insert—
“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the claimant and any other person materially affected by the impugned act in relation to the relevant defect.”
This amendment would remove the presumption and make it a precondition of the court’s exercise of the new remedial powers that they should offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 4, page 2, leave out lines 24 to 32.
This amendment would protect the discretion of the court by removing the presumption in favour of issuing suspended, prospective-only quashing orders.
Amendment 38, page 2, line 29, leave out from “court” to end of line 30 and insert
“may exercise the powers in that subsection accordingly”.
This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.
Amendment 32, page 2, leave out lines 31 and 32.
This amendment removes the extra weight which would otherwise be given to subsection 8(e) by the courts when applying the test created in subsection 9(b) to establish whether the statutory presumption is applicable.
Amendment 30, page 3, line 13, at end insert—
“(5) After section 31A of the Senior Courts Act 1981 insert—
‘31B Constitutional importance of judicial review
It is recognised that judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.’”
This amendment would highlight the importance of judicial review in the UK’s constitutional principles.
Amendment 5, page 3, line 14, leave out clause 2.
This amendment would preserve the ability of claimants to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal (also known as “Cart judicial review”).
Government amendment 6.
Amendment 42, in clause 2, page 4, line 16, leave out from “Ireland” to the end of line 17.
This amendment is consequential on amendment 43.
Amendment 43, page 4, line 19, at end insert—
“(8) This section does not extend to Scotland.”
This amendment would ensure that the exclusion of review of Upper Tribunal’s permission-to-appeal decisions did not extend to Scotland.
Andy Slaughter
It is a pleasure to open the debate and speak to the new clauses and amendments that stand in my name and those of my right hon. and hon. Friends. I am grateful to the Government for their co-operation on the programme motion, and to the Minister and his colleagues for the civilised way in which we have debated the Bill thus far. Unfortunately, they were not persuaded by our arguments in Committee, so if there is no movement today, the Opposition will vote against the Bill on Third Reading, as we did on Second Reading. We have issues with part 2 of the Bill, which will mainly be dealt with by my hon. Friend the Member for Stockton North (Alex Cunningham) in the debate on the second group of amendments, although I will deal in this group with our concerns about chapter 4 on coroners and our proposed new clauses 4 to 6.
I start with amendments to part 1 of the Bill, which are the most numerous and most needed to try to redeem the Bill. There is a strong clue to the Opposition’s approach in amendment 23, which we tabled to leave out clause 1 in its entirety. I have also signed amendment 5, tabled by the Liberal Democrats’ spokesperson, the hon. Member for Bath (Wera Hobhouse), which would leave out clause 2. In short, we see no merit at all in part 1 of the Bill and would strike it out.
The purpose of judicial review is to determine whether public bodies have made lawful decisions and to provide remedies where they have not. The conceit of the Government’s approach, which would be taken further by new clauses 8 and 9, tabled by the right hon. Member for South Holland and The Deepings (Sir John Hayes), is that the courts are trespassing on the rights of Parliament, substituting their views for ours and, in some ways, entering the realm of politics. We read that the Justice Secretary and the Prime Minister think that the Bill, which was introduced by the previous Lord Chancellor, the right hon. and learned Member for South Swindon (Sir Robert Buckland), does not go far enough in clipping the judges’ wings. They seek to remedy that through repeal of the Human Rights Act 1998 and its replacement by a so-called new Bill of Rights and an interpretation Act: an annual audit by Parliament of which judicial decisions it likes and which it seeks to overturn. The Opposition think that that is constitutionally wrong and a provocation.
A better way to look at the role of the courts was set out by the late Lord Bingham in A. v. Secretary of State for the Home Department who, in rejecting submissions from the then Attorney General in that case, said:
“I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true…that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.”
We celebrate the role that judicial review plays in our constitution in amendment 30, which says that
“judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.”
Should the Government prefer that wording to that of the clause, that would be welcome. Failing that, we have tabled 11 further amendments that cumulatively or, in the alternative, seek to mitigate the worst effects of clause 1.
The clause introduces suspended or prospective-only quashing orders and cements them with a presumption that they will employed by the courts in most cases. The Government-appointed independent review of administrative law, which was supposed to lay the groundwork for the Bill, did not recommend prospective-only orders and specifically disapproved any presumption as to their use. Prospective-only orders could deprive claimants of a proper chance of redress and will certainly create a chilling effect. What is the incentive to pursue judicial review if the claimant has no prospect of having the wrong righted?
The presumption is the clearest but not the only way in which the clause seeks to fetter judicial discretion. The Opposition’s remaining amendments seek to restore that discretion and attack the most prescriptive parts of the clause. Amendment 24 provides that modified quashing orders will be applied only where, in the court’s view, it is in the interests of justice, and that they ought to be confined to those rare cases where a quashing order might cause, for example, significant disadvantage to third parties. Amendment 31 recognises that suspended quashing orders may be beneficial in some cases but seeks clarity from the Government on their intentions and what conditions they feel should be met when using the provision.
Amendment 26 looks to preserve collateral challenge in the event that such modified quashing orders are used. Let us say that delegated legislation made during the coronavirus crisis that created imprisonable criminal offences was declared illegal by a court. If a court granted a prospective-only quashing order under the Bill, that would make imprisonment legal before the remedy. A person accused could not argue before the criminal courts that the statutory instrument was invalid, because the measure requires a judge to act as if it were valid. The amendment seeks to protect a person’s right to use the court’s decision as a defence in criminal proceedings.
Amendment 27 clarifies any factors that the court considers are a matter for its own judgment. The current use of “must” instead of “may” directs the judge’s reasoning and interferes with judicial independence and discretion. That is especially obnoxious as judicial review is discretionary and involves taking account of all the factors before the court. The court must be able to do justice on the facts, not be nudged to decide cases favourably to the Executive.
Amendments 33 to 35, 28 and 32 deal with the list of factors the Bill requires the courts to consider when applying a quashing order. For example, amendment 33 will remove a factor that would unfairly disadvantage the claimant. Amendment 34 recognises that a suspended or prospective-only quashing order can leave a claimant waiting for justice, so it asks the court to be mindful of a timely remedy. Amendment 28 would remove the requirement to take account of actions that the public body proposes to take. For example, if a public body tells a court that it intends to carry out certain measures to fix a problem, the court may suspend the quashing order, but if the public body goes away and changes its mind on the actions that it will take, the claimant, again, is left without a timely remedy. Amendment 28 would ensure that the court does not have to take account of the proposals made by a public body, and so a quicker remedy for the claimant ensues. Taken together, the amendments rebalance the proposal in clause 1 to protect the rights of claimants.
Amendment 29 clarifies that the principle of good administration includes the need for administration to be lawful. Let me finally, in addressing clause 1, turn to amendment 25, which would remove the presumption that suspended or prospective-only quashing orders should be used, and, instead, favours an effective remedy being offered to the claimant so that justice is preserved. The presumption set out in clause 1(9) undermines the independence and discretion of the court. The presumption acts on a one-size-fits-all approach to justice and does not respect the judge’s ability to assess the facts laid out in front of them in their courtroom and decide on a suitable conclusion. Amendment 25 also has a further protective factor that, if clause 1 is kept within the Bill and suspended and prospective-only quashing orders are to be used, there will be a pre-condition that there will be an effective remedy. If a single step could improve this part of the Bill, save abandoning it entirely, it is the removal of the presumption. For that reason, we wish to test the House on amendment 25 this afternoon and put it to a vote at the end of the debate.
Clause 2 ousts the jurisdiction of the High Court in relation to what are called Cart judicial reviews and removes the supervisory jurisdiction of the court over the tribunal system in those cases—for example, where the upper tribunal has refused the claimant the right to challenge the decision made in the first-tier tribunal not to allow and appeal the earlier decision.
In Committee, we objected to clause 2 both because of the nature of the cases subject to the Cart jurisdiction, which are primarily, but not exclusively, immigration and asylum cases, and because, on the Government’s own admission, it is designed to set a precedent for future employment of ouster clauses, which they clearly intend to become a more common feature of legislation. That is another attempt to subvert the authority of the courts. Unlike with clause 1, there is little that could be done to improve clause 2—you either like it or you don’t. Therefore, most commentators who are concerned by it think that the only solution is to strike it down. That was also the view of both Opposition parties in Committee, and we see from amendment 5 that it is also the view of the Liberal Democrats whose amendment to leave out clause 2 I have signed.
Contrary to the Government’s narrative that Cart judicial reviews are profligate, they are only allowed to proceed where there is an arguable case that has a reasonable prospect of success that both the decision of the upper tribunal refusing permission to appeal and the decision of the first-tier tribunal against which permission to appeal was sought are wrong in law. The claim either raises an important point of principle or practice, or there is some other compelling reason to hear it. Again, this is a mechanism to right a wrong. In the instance of Cart judicial review, it is to be used when there has been a serious error of law in the first-tier tribunal and stops deserving cases slipping through the net.
Several hon. Members rose—
Madam Deputy Speaker (Dame Rosie Winterton)
In view of the shortness of time, I will have to impose, to start with, an eight-minute time limit. It may very well have to be reduced later.
Sir John Hayes (South Holland and The Deepings) (Con)
I rise to speak on new clauses 8 and 9, which stand in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt).
Those who served on the Bill Committee will not be unfamiliar with the arguments I intend to address, as we rehearsed them at considerable length in Committee. The Minister knows well my general concerns about the Bill: while it is a good start in dealing with the pressing issue of judicial review and how that has been distorted by recent judicial practice, it is only a start. We need much more wide-ranging reform of judicial review and, indeed, much more wide-ranging reform of the relationship between this House and the judiciary, as set out in the Attorney General’s recent speech in Cambridge on judicial activism.
New clause 8 addresses the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000, and especially in circumventing the role of the investigatory powers tribunal. I take a particular interest in that, having been the Minister at the Home Office who introduced the Investigatory Powers Act 2016, which deals with the necessary precautions and safeguards associated with the storage and retrieval of electronic data. Indeed, the Bill I took through the House introduced the double lock: all warrants, as well as being dealt with by the Home Secretary, are, as an additional safeguard, dealt with by a judicial commissioner. That safeguard was to ensure the core principles of proportionality and necessity, which lay at the heart of all considerations of that kind.
The problem is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in context. The supremacy of Parliament is fundamental to protecting the interests of the people. Parliament’s role in our constitutional settlement is not—as was suggested in an evidence session with Aidan O’Neill QC—a matter of neutrality.
Marco Longhi (Dudley North) (Con)
Does my right hon. Friend agree that the events of Brexit showed the vivid importance of always maintaining the sovereignty of this place and respecting the will of the people?
Sir John Hayes
Absolutely. The separation of powers does not deal with neutrality. It deals with different powers, which are, by constitutional arrangement, held by the courts and this place. The relationship between the two is critical. It is critical to our considerations today and more critical still to our constitution. A. V. Dicey argued that the separation of powers confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together. Therefore, as Dicey says:
“The principle of Parliamentary sovereignty means neither more nor less than this, that Parliament… has… the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
That is precisely the point that my hon. Friend makes.
We need to reaffirm that principle in general and the Bill is an opportunity to do so. Any Parliament that makes a new law or repeals a law will be obeyed by the courts. That is fundamental to the role of this place. All of us who represent the people, as my hon. Friend says, have a duty, not just a mission, to reflect the will of the people.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Is not the point of judicial review to make sure the Government comply with the rules and restrictions set by Parliament? Restrictions on judicial review allow the Government to ride roughshod over Parliament’s views.
Sir John Hayes
That is, of course, true, and it is why judicial review exists. The hon. Gentleman is right that there need to be checks and balances, but it is wrong to use judicial review to perpetuate matters of high politics or to perpetuate debates that have been settled in the country and in this place.
What we heard from the Minister when we debated these issues at considerable length is that, in effect, people are having several bites of the cherry. Debates were settled and then people came back to reopen them and revisit subjects that had already been agreed. That is not the role of the judicial process and it is certainly not the role of judicial review. The Bill goes some way to addressing that.
The purpose of my new clauses is to probe and press the Government to do more. I strongly urge the Minister to accept them with enthusiasm and alacrity because to involve the courts in matters of investigatory powers, as I said, is quite wrong. The landmark Privacy International case of May 2019 illustrates how wrong it can be. I will not go into detail because time does not permit, but other hon. Members will be familiar with the case and its legal ramifications. I recommend the Attorney General’s speech, which I have mentioned already, to those who want to find out more.
Professor Richard Ekins gave evidence to the Public Bill Committee, and he wrote an excellent paper on these subjects for Policy Exchange. He describes the Supreme Court’s judgment in respect of the Privacy International case as
“a very serious attack on some fundamentals of the constitution.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 15.]
For a very long time, it was not accepted that the courts should become involved in matters of investigatory powers, and particularly the tribunal. There was no possibility of judicial review for 19 years after the 2000 Act was passed.
Sally-Ann Hart (Hastings and Rye) (Con)
Will my right hon. Friend confirm that these new clauses would, in effect, stop judicial review departing from a narrow focus on a particular public Act and becoming a free-ranging inquiry into Government decision making?
Sir John Hayes
My hon. Friend makes the point more eloquently than I ever could, partly due to her expertise. The real point is that these cases have created the possibility of a much more wide-ranging rebalancing and reappraisal of the relationship between the courts and Parliament, without public consent—indeed, the public have not been consulted. That is not good for the courts. We want to maintain the integrity of the judicial process by affirming the characteristics they have long enjoyed that underpin the separation of powers. New clause 8 would not only do a great service to the cause my hon. Friend highlights, but improve the Bill and be in the courts’ own interest.
It is important to understand that new clause 9 has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence or resolving and disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because they are a supervisory jurisdiction that should focus on questions of law rather than questions of fact. Once again, what has occurred over time is that the courts have strayed into debates and inquiries about matters of fact rather than matters of law. That status quo prevailed for a very long time, but the role of the courts has altered. Furthermore, there has been a change in the application of judicial review in respect of evidence. The courts ought to be focused on the legality of a decision, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) said, and whether it stands up to appropriate levels of scrutiny—that is the business of a judicial review. Judicial review is supposed to be a backstop, a check, of the kind he described in his intervention—
Mr Alistair Carmichael (Orkney and Shetland) (LD)
The difficulty I have with the right hon. Gentleman’s argument is this: where facts are in dispute, how can a court be expected to rule on a point of law without hearing evidence?
Sir John Hayes
The court can take evidence, but what it should not be doing is fishing for further information, of a wider variety, which opens up consideration of the original process, rather than checking whether that process was right and proper; it is a subtle difference but a fundamental one in terms of the change in the way courts have gone about their business.
Our new clause addresses this issue, as the Minister will know. Jonathan Sumption is the judge who perhaps more than any other has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:
“It is the proper function of the Courts to stop governments exceeding or abusing their legal powers.”
That is absolutely what JR should be, but I fear that it is being compromised by the changes that are taking place as a result of judicial activism. So, mindful of the Attorney General’s advice on this and of the fact that the Government clearly are in tune with that advice—otherwise, they would not have introduced this Bill in the first place—I urge them to accept the amendments, in order to make this Bill be as good as it can be. Rather than waiting for another bus to come along, we should get on this one and get to the destination we all seek.
Anne McLaughlin (Glasgow North East) (SNP)
Much of this Bill has no impact on Scotland or our separate courts and legal system, so our amendments and my comments are focused on the parts that do, which primarily deal with judicial review. The parts of the Bill I will address today are not just bad; they are unnecessary and dangerous, and they lay the groundwork for the Government to insulate themselves and future Governments from proper scrutiny and accountability. I am sure that is on their personal wish list given current events, but we ought to make policy for generations, for everyone and not for one iteration of one political party.
I sat through 11 sittings of the Public Bill Committee and waited for the Government to persuade me that, for example, removing Cart JR was necessary, but instead I heard odds and sods of anecdotal evidence, lots of legal jargon and the phrase “three bites of the cherry” a total of 62 times, with the implication that somehow those using Cart JR had greater access to justice—that simply is not true. Cart JR is not about saying, “I don’t like the decision you've come to, let’s try again for a different judgement.” It is about looking at the situation where, first, a serious error of law may have been committed in the first-tier tribunal, and then the upper tribunal has failed to recognise and correct the error. It could be that the first-tier tribunal failed to consider or misinterpreted the evidence, or that the facts are inconsistent with the decision, but the point is: it happens, mistakes are made and Cart JRs provide a vital safeguard to correct these errors in cases where the stakes can be incredibly high. Rather than this being a “third bite of the cherry”, the reality is that the first bite was not even a slither—a mistake was made. Mistakes do not just affect the person in question; the ramifications are wider. Similarly, Cart JRs not only give one person who has appealed the opportunity to have their case considered properly, but they catch out errors and injustices, benefiting the system as a whole. Cart JRs have been used to ensure that disabled people are given the right benefit entitlement; they have stopped people being made homeless; and they have prevented the deportation of people to countries where they faced certain death. I am currently waiting to attend a first-tier tribunal on behalf of a family member. Given my knowledge of her and of the social security system, I am 100% certain of her entitlement and equally certain it will only fail if a mistake is made when considering the evidence. If that happens, surely my family member deserves the right to have it rectified—surely everybody has that right.
The thing is: the Government know that the impact will be far greater on those who are most vulnerable. In their own impact statement for this Bill, they admit that abolishing Cart would mean that
“those who do lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
So anyone voting for this ought to be aware and be honest with their constituents that they are consciously voting to the detriment of their constituents with protected characteristics. It is estimated that this will save only £364,000 to £402,000 a year. That is the cost of protecting the rights of some of the most vulnerable people. It is not much to ask for, is it? Let us not pretend that this is about being prudent with the public purse after writing off £4.3 billion of fraudulent covid claims last year.
We will vote against this terrible Bill, but if it does go ahead, our amendments 42 and 43 would protect the Scottish courts and tribunals from clause 2. We in Scotland do not want it, the legal profession does not want it, the Scottish Government do not want it, and I guarantee that the people of Scotland do not want it. This Government are trying very hard to demonstrate their alleged respect for Scotland—in words if not in actions—as the Scottish Government lay the groundwork for an independence referendum; some would say, because of the independence referendum. Well, now is their chance. Now is the chance for all the parties in this place to show Scotland just how much respect they have for our separate and distinct legal system and our right to protect it, and ourselves, from this legislation.
My final thoughts on clause 2 relate to the way in which the Government intend to make this happen—the legal framework. The Government say that the use of an ouster clause will set a precedent for removing certain cases or areas out of the scope of judicial review, but what does that mean? It means that in future they intend to cherry-pick areas that they would rather not see judicially reviewed, which sounds every bit as dangerous as it is. The rule of law and the separation of powers are hallmarks of an effective democracy; we cannot allow the Government to pick and choose where and how they face judicial scrutiny. As Liberty reminds us in its briefing, this Bill is passing through Parliament at the same time as the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Elections Bill, to name but a few. Now more than ever, we need the ability and deserve the right to hold the Government and public bodies to account.
Clause 1, on suspended quashing orders and prospective-only remedies, does not extend to Scottish courts and will not apply directly, but it will affect UK-wide legislation to which we are all subject. It will also mean that many more people across these islands may choose Scottish courts, and while I am always happy to promote Scotland and our separate legal system, there may be a capacity issue that has not been discussed or even considered.
Along with others, I have raised the landmark Unison judicial review of 2017 a number of times. The Supreme Court agreed that the fees for access to justice via employment tribunals were unlawful, so everyone who had paid them was refunded, and the Government were no longer allowed to charge the fees from the moment of that judgment. Let us consider what would happen if the Bill were passed and if, instead of seeking a judicial review in 2017, Unison did so this year and, crucially, secured the same decision: the decision that the workers were right, and that what the Government were doing was unlawful. The difference is that if this Bill is enacted, no one initiating a judicial review will have their fees refunded and no one who has already been forced to pay up to £1,200 for an employment tribunal will be refunded either, despite the court’s agreeing that they have been subject to something unlawful. Anyone subsequently requiring an employment tribunal will still have to pay the unlawful fees, and in the meantime the Government will be able to tweak the legislation and make the unlawful lawful. Who would or could go to the expense and trouble of seeking a judicial review given the prospect of no remedy, no justice, and no change in their or anyone else’s situation?
The delaying of a quashing order is, in certain circumstances, the appropriate path to follow, and that is why the courts already have that option. The issue is that it is currently an option, and the clause seeks to make it a presumption. The Independent Review of Administrative Law, which has been largely ignored in respect of its recommendations for judicial review, suggested that “giving courts the option” was enough, but here we see the Government determined to fetter judicial discretion and tie the hands of judges. Our amendment would ensure that it would once more be the case that judges “may” rather than “must” use such delays, and if the Government continue to argue that they are not trying to tie the hands of the judges, they will surely support it tonight.
Madam Deputy Speaker (Dame Rosie Winterton)
I call Helen Morgan to make her maiden speech.
Helen Morgan (North Shropshire) (LD)
Thank you, Madam Deputy Speaker. I am humbled today to be standing in this historic Chamber representing the people of North Shropshire. Those of you who have visited will know that it is a large and beautiful landscape populated with pretty market towns and villages and with a long and fascinating history.
I would like to start by thanking my predecessor, Owen Paterson, for almost a quarter of a century of service to the people of North Shropshire and, in particular, for his recent campaign and charitable work for suicide prevention.
It is impossible to visit North Shropshire without being taken back in time. An iron-age fort at Oswestry starts the story, as the first settlers here pioneered the farming industry that underpins the local economy to this day. In Welsh, the site is known as Caer Ogyrfan, meaning “City of Gogyrfan”, the father of Guinevere in Arthurian legend. The intertwined story of North Shropshire and British politics may have begun there.
The next step in our history is at Whitchurch, an important staging post on the Roman road to Chester. It takes its modern name from St Alkmund’s church, originally built with white sandstone quarried in the south of the constituency at Grinshill. And here the association continues—this fine white sandstone was also used to make the lintels and door surround of No. 10 Downing Street. I am sure the Prime Minister will be reminded of the beautiful constituency of North Shropshire each time he passes through that iconic entrance.
In the medieval period, Ellesmere’s great castle was taken by Llywelyn the Great, not to be reclaimed by the English until after his death. Its remains are now largely confined to the earthworks they were built on, but luckily, the fortifications at Whittington and Moreton Corbet still bear testament to the turbulence of life in the marches of the medieval kingdom.
Internal strife has played its part as well—in the early stages of the wars of the roses, the Yorkist army thundered past Market Drayton and through North Shropshire, eager to link up with reinforcements in Ludlow after its victory at nearby Blore Heath.
In the civil war, the residents of Wem, the town closest to my home, proved that the communities of North Shropshire are not just decent and resilient, but occasionally radical. It was the first town in Shropshire to declare for the parliamentarians in the civil war. The troops garrisoned in the town had not completed their wooden defences and had only 40 musketeers to hold their position in 1643 when the royalist army approached. The royalists, complacent and confident of victory, approached from Soulton to the east, but legend has it that the women of Wem rallied to the parliamentarian cause and the garrison held. So it seems that while I am the first woman to represent this area in Parliament, I am continuing a fine tradition of women in North Shropshire defending our democracy.
I am reminded of the brave women of Wem when I consider the impact of this Bill. I am sure that colleagues on both sides of this House would agree that our democracy, which has evolved over hundreds of years, and since the 17th century largely peacefully, should be protected at all costs. Fundamental to that democracy is that the rule of law is upheld without fear or favour, but this Bill seeks to undermine that principle. It will limit the ability of ordinary people to hold this Government to account through the courts.
Judicial review is working well. It is a powerful tool for individuals to enforce their rights and stop Governments from overstepping their powers. Abolishing Cart judicial review, for example, would remove a safeguard when tribunals make mistakes in cases where the stakes are often extremely high for the people involved. It is completely unjustified and a backward step. That is why my Liberal Democrat colleagues and I are supporting amendment 5 in the name of my hon. Friend the Member for Bath (Wera Hobhouse).
Threatening to weaken the people’s ability to challenge the Government because the courts sometimes rule against you is the act of dictators and despots, not democrats. The best way for a Government to avoid that situation is to ensure that they act lawfully in the first place, not legislate to ensure that there is one rule for the citizens of this country and another for its leaders. The circumstances of my election suggest that the majority of voters in North Shropshire would agree.
As their representative on these green Benches and in the home of democracy, I will always defend their democratic rights and listen to their concerns, regardless of the candidate for whom their vote was cast. I will not give up on the fight for the issues that matter most to them: better access to health and ambulance services, a fair deal for our farming community, and proper provision of infrastructure and public services in rural areas. I very much look forward to working with my colleagues on both sides of this House to achieve that.
Madam Deputy Speaker (Dame Rosie Winterton)
I congratulate the hon. Lady on her maiden speech; she is clearly going to be a very lively contributor to our debates.
In order to ensure that we fit everybody in, I will have to reduce the time limit to six minutes. I call Paula Barker.
Paula Barker (Liverpool, Wavertree) (Lab)
I would like to congratulate the hon. Member for North Shropshire (Helen Morgan) on her wonderful maiden speech and welcome her to her seat in this place. She talked about this historic Chamber, but of course she herself has made history by being the first Lib Dem and the first female MP in that seat. I wish her all the very best in her endeavours to represent her constituents.
Joanna Cherry (Edinburgh South West) (SNP)
I commend the hon. Member for North Shropshire (Helen Morgan) for her excellent maiden speech, and for her excellent and pretty amazing by-election victory.
I rise to speak to amendments 1 to 3, 5 and 37, which stand in my name and those of other hon. Members. My sponsorship of these amendments arises from the legislative scrutiny of the Bill conducted by the Joint Committee on Human Rights. The Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who is the Chair of the Committee and who would normally speak to these amendments, cannot be here today because of her bereavement. I extend my deepest sympathies to her and her family, and I pay tribute to her late husband, the former Member for Birmingham, Erdington, who was a widely respected and loved man.
I remind hon. Members that the Joint Committee is a cross-party Committee, with half its members from the Commons and half from the other place, and we undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence from a number of people on this Bill, and we have been advised by our own legal experts. On 7 December last year we published a report, which was unanimous, so it had cross-party support from across both Houses. We concluded that if clause 1 were enacted, it would
“not guarantee that an individual would receive an effective remedy for a violation of their human rights.”
We recommended that the Government remove the requirement in the clause
“as it amounts to an unnecessary…intrusion into judicial remedial discretion.”
As I say, that is an informed view reached on a cross-party basis after taking evidence, and that would be the effect of amendments 1 to 3 if they were passed.
If amendments 1 to 3 are not passed, there is a fall-back position. We also recommended that the Bill be amended so that the courts would have to have regard to the convention rights of any person who would be affected by such a decision and the duty to provide an effective remedy for a human rights violation under article 13. That would mean that when courts decide to make a quashing order with suspended or prospective-only effects, convention rights would be required to be taken into account. That would be the effect of amendment 37, which I reiterate that we see as a fall-back if amendments 1 to 3 are not passed.
I turn to clause 2. The Joint Committee shares the view articulated by my hon. Friend the Member for Glasgow North East (Anne McLaughlin) about Cart judicial reviews. We reached the conclusion that judicial supervision of the upper tribunal protects against legal error. Only a small proportion of Cart judicial review applications are successful, but in some of them, individuals could be prevented from being wrongly removed from the United Kingdom to face the most heinous human rights violations in other countries.
We said that rather than taking a hammer to crack a nut in that way, the Government should
“introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases.”
We also said that
“every effort must be made”
to ensure that the initial decision-makers and the first-tier tribunal
“make the best possible decisions when cases are before them”.
That would limit the need for asylum seekers to rely on a third opportunity to have their application for permission to appeal considered, and it would be the effect of amendment 5.
Generally on ouster clauses, which other hon. Members have spoken about this afternoon, the Joint Committee on Human Rights said in our report:
“We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation”.
Clearly, we are concerned about the possibility of undermining the rule of law, which is essential for the protection and enforcement of human rights.
Before I sit down, I want to give my personal support to the amendments tabled on behalf of the Scottish National party, and to reiterate what I said on Second Reading. It is not constitutionally appropriate for the exclusion of review of upper tribunal permission to appeal decisions to extend to Scotland. The Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge), who is in his place, has conceded to me in a letter dated 10 November that clause 2 will alter the jurisdiction of the Court of Session. It is not for this place to alter the jurisdiction of the Court of Session—that is a contravention of not just the devolved settlement, but article 19 of the Act of Union.
The Minister will say, “Oh no—it is not a contravention of article 19 because it’s a regulation for the better administration of justice.” I am sorry, but in Scotland we do not see regulations that circumscribe the availability of justice to individual members of the public as something for the better administration of justice. The Law Society of Scotland has been clear that a legislative consent motion is required; none has been sought, and none would be granted for an interference with the jurisdiction of the Court of Session.
Finally, as I said on Second Reading, there is no evidence base for there being any mischief in Scotland in relation to Cart judicial review; we actually call it Eba judicial review because of our case. The evidence base that the Government presented was completely confined to cases in England. If clause 2 passes, that will just be another example of this Government overriding the devolved settlement, undermining the Union. Please, Minister, leave Scotland’s legal system to Scotland’s Parliament, where it belongs.
Janet Daby (Lewisham East) (Lab)
There has been a lot of turmoil on the Government Benches over the past few weeks—partygate, allegations of blackmail and now Islamophobia. But one thing remains consistent and there is one thing we can count on: the Government have their eyes set on authoritarian rule.
Just look at the recent legislation brought before this House. The Nationality and Borders Bill grants the Government power to strip citizenship without notice. The Elections Bill imposes mandatory voter ID, discriminating against deprived and disadvantaged communities. The Police, Crime, Sentencing and Courts Bill gives the Government the ability to suppress protest that they deem too noisy.
The Government’s own manifesto promised to protect the individual from an overbearing state, yet this Bill does the opposite, fortifying the Government’s power grab. Judicial review enables individuals to challenge the legality of decisions made by public bodies. It ensures that decisions are made in the right way. When honoured, it is a vital process in checking the power of the Government and it is often the sole key to justice for the most vulnerable.
Without judicial review as it stands, EU citizens would have been deported for rough sleeping, innocent NHS staff would have lost their pensions and a child’s cardiac surgery clinic would have been unlawfully shut down. But instead of strengthening judicial review, this Bill strangles it.
Clause 1 incentivises the use of prospective-only quashing orders. That would mean that when a judge overturned a decision that they deemed illegal, justice would be available only for subsequent claims going forward. The judgment would no longer be retrospective. Past victims hurt by illegal decisions would receive no compensation. That does not sound fair or right to me. This measure hollows out the power of judicial review and inevitably means that more justice will be left unaddressed. In fact, as the right hon. Member for Haltemprice and Howden (Mr Davis) said, the proposals
“tip the scales of law in favour of the powerful.”
Is that not the story of this Government—more money for the wealthy and powerful and an absent hand for those who need it the most? The whole point of a democracy is that the state should not be able to steamroll its citizens, particularly the most vulnerable.
Madam Deputy Speaker (Dame Rosie Winterton)
Just a little reminder: it is important to refer to the amendments as well as the clauses in the Bill, as we are at that stage of the proceedings.
Wera Hobhouse (Bath) (LD)
I take this opportunity to welcome my new colleague, my hon. Friend the Member for North Shropshire (Helen Morgan), to these Benches. I congratulate her on the excellent speech she made today.
I rise to speak to the Liberal Democrat amendments 1 to 5. The Government claim that the Bill will ensure that judicial review is available to protect the rights of individuals against an overbearing state, but it will have quite the opposite effect. As Amnesty International and others have pointed out, the Bill will tie the hands of the judiciary in respect of what remedies they can order when public authorities act unlawfully. It will weaken the courts’ ability to ensure that justice is done and that human rights violations are remedied.
Apsana Begum (Poplar and Limehouse) (Lab)
I rise to speak to a number of amendments and new clauses, in particular new clause 4, which corresponds with the commitment in the 2019 Labour manifesto to ensure legal aid for inquests into deaths in state custody—a commitment first announced in February 2019 by my hon. Friend the Member for Leeds East (Richard Burgon) in his former role. Closely linked are new clauses 5 and 6, which I also want to mention. The justice charity Inquest has been campaigning for decades for bereaved families to be granted automatic non-means-tested funding for legal representation following state-related deaths.
I support amendments 1, 2, 3 and 23, which are about removing the provision to make quashing orders suspended and prospective only. I place on the record my strong opposition to the removal of Cart judicial review and, as such, I support amendment 5 to delete clause 2 entirely. Amendment 25 speaks to the problem that campaigners have with the prospective-only remedies that the Government are proposing, in that they leave many successful claimants with no effective remedy. On amendments 27 to 30, I agree with Liberty, who argue that, although it supports the amendments, the very fact that so many changes are required to mitigate the harm of the provisions, alongside the lack of any need for their introduction, shows they would be better off discarded altogether.
That brings me to the thread that runs through the amendments, and the crux of the dangers of the Bill as a whole. The legislation before the House today removes vital safeguards that protect often marginalised people, especially migrants, from mistakes being made by public bodies—mistakes that could have a catastrophic impact on their lives. I want to highlight an example of what I understand that to mean and to flesh out one of the many human consequences at stake by talking about disability benefits.
Around four out of five cases where a claimant has been denied disability benefits are overturned on appeal. Why? As we know, serious concerns have been raised about the key measures introduced in the Welfare Reform Act 2012—the replacement of the disability living allowance with the personal independence payment, a new sanctions regime and new assessment processes for employment and support allowance. Even a United Nations inquiry said there were “grave or systemic violations” of the rights of disabled people, in reports to the Information Commissioner concerning the deaths of claimants following their work capability assessment finding them fit for work.
It has been clear for many years that the assessments in particular are not fit for purpose and in many cases are actively harmful to the people who are subjected to them. In some cases, a decision not to award a PIP has been overturned by a tribunal after it had taken account of medical evidence from doctors about the claimant’s condition that had been ignored by officials during the initial assessment.
I am conscious that each of the many thousands of incorrect decisions about what support a disabled person should be getting causes real suffering to that person and to their family and friends. I support the growing calls for an independent inquiry to investigate why claimant deaths are happening, and for the scale of such deaths to be properly understood. The Conservative austerity program of cutting costs through so-called welfare reform has been brutal. We need to scrap the dehumanising work capability and PIP assessments and pursue the social model of disability, removing the barriers constructed by society and ensuring that disabled people can participate fully and equally in our society.
During the covid-19 pandemic we have seen further failures in providing proper financial and practical support to disabled people and their families, which have led to many being denied the support needed. The Government’s strategy in responding to the pandemic has led to many thousands of avoidable deaths, and it is important to recognise that disabled people form a large proportion of those deaths. Yet, perversely, and with a heartless callousness that is breath-taking, the Government’s answer is not to address the widely recognised abomination that is their treatment of people with disabilities, but to seek to further attack their rights—to obscure scrutiny, truth, and justice.
It is no coincidence that as the Government look to water down people’s power to challenge the state, a number of groups are using that power to hold them accountable. Indeed, a host of high-profile court cases, on disability rights, as I have addressed in my comments today, to police violence and climate change, are seeking to challenge the Government’s decisions. I wonder whose side history will come down on in the end—those who challenge injustice and power, or the perpetrators of injustice and power seeking to avoid accountability? We will resist this Government’s attacks on our communities and our rights, and we will overcome.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
May I start by picking up a point that the hon. Member for North Shropshire (Helen Morgan) made in her excellent maiden speech, on which I congratulate her? If nothing else, recent events reassure us that our constituents quite rightly do not like the Prime Minister, the Government or any public authority operating as if they were above the law or as if the rules that we all have to follow do not apply to them.
Although the Bill may not attract as many headlines as the various partygate stories, it raises the same issues, but in a much broader and more profound way. The Conservative Government are once again trying to put themselves above the law and make sure that basic principles of administrative law and rules passed by this Parliament do not constrain them. That will be the impact of the first two clauses, so I fully support all the amendments that seek to leave out or ameliorate them. I adopt all the arguments that my hon. Friend the Member for Glasgow North East (Anne McLaughlin) and all Opposition MPs have put forward today.
I would like to take on the argument made by the Attorney General and others that the Bill is about parliamentary sovereignty, as troubling and overrated a concept as that is. The Bill does not assert the sovereignty of Parliament; it promotes untrammelled Executive authority. It is not about ensuring that Parliament’s will is respected, but about Government and public authorities being able to exceed or ignore the rules and restrictions that Parliament has placed on them. For us to vote for the Bill would be not so much an exercise of parliamentary sovereignty as an exercise in parliamentary stupidity, inviting the Government to ignore the limits we place on them and helping to exacerbate what Lord Hailsham called elective dictatorship.
My main point relates to Scotland and to amendments 42 and 43, which I support. To build on points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), it is absolutely not for this Parliament to impose clause 2 and changes to Cart and Eba judicial reviews on Scotland’s legal system. As the independent review of administrative law made clear, judicial review is a devolved matter. The review’s report was absolutely clear that it would be for the institutions of devolved government to decide whether to follow its recommendations. Without exception, every single submission from a devolved jurisdiction was opposed to, or at least not persuaded of, the need for reform.
Scotland has undertaken its own reform of judicial review in recent years. For this Parliament to interfere with it risks setting up two parallel systems of review in our jurisdiction, whereby someone challenging a devolved social security decision might face totally different obstacles from someone challenging a reserved social security decision. Again, the independent review was clear, describing such a two-tier system as “highly undesirable”. As my hon. and learned Friend alluded to, the analysis of judicial review in Scotland in the review is limited, as its authors acknowledge, but none of the overall judicial review figures cited—less than 400 cases commenced each year, of which less than 50 make it to a hearing, with 30% successful—justifies these rather obnoxious proposals.
The Joint Committee on Human Rights and the Law Society of Scotland have both concluded that there is “no evidence” of any problem in Scotland that needs this Government to interfere. They, too, confirm that this is a devolved issue. In its briefing on the Bill as long ago as Second Reading, the Law Society of Scotland set out that, unusually, there are two grounds for arguing that the Government should not bulldoze these provisions through: not only are they legislating on a devolved matter, Scots private law, but they are narrowing the competence of the Scottish Parliament because clause 2 creates a rule special to a reserved matter and the Scottish Parliament does not have the competence to abolish or modify such a rule. It is a double whammy.
Indeed, for reasons that my hon. and learned Friend set out, it is a triple whammy. As was pointed out to the Government review panel, the Scottish competence of judicial review derives from article XIX of the Acts of Union of 1706 and 1707. The Law Society of Scotland warned the panel that
“care always has to be taken so as not to render the Court’s”—
the Court of Session’s—
“jurisdiction in judicial review ineffective”,
and that if reforms in the area go too far, they may
“be in breach of the Acts of Union”.
I object to the whole purpose of part 1 of the Bill, but even if the Government insist on pressing ahead, the overwhelming view from Scotland is “Get your hands off our judicial review laws.” That is why everybody in this House should support amendments 42 and 43.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
I am grateful to all Members who have contributed to the debate so far. In particular, I congratulate the hon. Member for North Shropshire (Helen Morgan) on an excellent maiden speech. I know that part of the country well and she described it aptly: it is both historic and beautiful. I wish her well in the months ahead.
Debbie Abrahams (Oldham East and Saddleworth) (Lab)
Will the Minister comment on the assessment that the judicial review on the shortages of personal protective equipment for health workers would not have taken place had this legislation been in place?
James Cartlidge
The point is that these matters are entirely for our independent judiciary. The judiciary will make the judgment on whether the powers in the Bill should be used. I would not want to speculate on whether they would have been used in individual cases; that is not my role as a Minister. We have to have faith in how the judiciary will deploy what are, after all, new flexibilities—as we say, new tools in the judicial toolbox.
Let me move on to the new clauses tabled by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). New clause 8 seeks to re-establish the ouster clause, in response to a 2019 Supreme Court judgment that asserted that certain decisions of the investigatory powers tribunal would not be subject to judicial review by the High Court. My right hon. Friend knows that we are sympathetic to and see merit in what he says, but we think this is not the right Bill or time, given the complexity involved. We want to look into the matter further, though. I was pleased to discuss it with my right hon. Friend in Committee and would be pleased to meet him further.
Sir John Hayes
There are two new clauses, and I am sure the Minister is going to deal with the second one, but the issue of evidence is particularly important, as he will know. Allowing cross-examination on the introduction of new material that was not pertinent to the original decision is not about checking matters of law, but about rehearsing matters of fact and perhaps even going on a fishing expedition for new facts. On investigatory powers, he knows how important it is that the tradition maintained for 19 years is maintained and that the courts simply do not get involved in those matters.
James Cartlidge
My right hon. Friend makes his point, but given what happened with the Supreme Court, I am sure he would agree that, if we did legislate, we would have to get it right. We feel we want to take our time and ensure that that is the case, but I sympathise with the broader point he makes.
On new clause 9, I would like to reassure my right hon. Friend that the Government are keen to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would otherwise have been kept confidential. However, we are not entirely persuaded that primary legislation is the best way of tackling any issues that there might be. As we have said, we are attracted to the independent review’s recommendation that, should it be necessary, the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is of course a matter for the Treasury Solicitor, the advantage of using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation. On that basis, I am afraid I cannot accept my right hon. Friend’s new clause, but, as I say, we do see merit in what he says.
Turning to amendment 23, which seeks to remove clause 1 of the Bill, the intention behind clause 1 is to address the very practical issues of the courts currently not having sufficient flexibility in deciding on remedies in judicial review. To remove it from the Bill would be to uphold the unsatisfactory status quo, ignoring the findings of the independent review of administrative law, and the Government fundamentally believe that that would be a mistake.
Amendment 1 and amendments 2 and 3, which are consequential on amendment 1, would remove one of the new tools we are proposing—namely, prospective-only quashing or quashing with limited retrospective effect. Let me remind the House of an example I have used previously of a real situation where the existence of the remedy could have been useful. It occurred when Natural England, in response to a threatened judicial review, decided to revoke general licences enabling farmers, landowners and gamekeepers to shoot pest birds. The revocation created immediate chaos for licence holders. I do not seek to re-litigate this case in the Chamber, but as I have said before, had the proposed remedies been available, Natural England may have been more willing to contest the judicial review, knowing that even if the existing licensing scheme was found to be unlawful, the court had the ability to protect past reliance on old licences. Such cases provide a tangible example of how more flexible remedies will allow courts to respond pragmatically and assist our constituents, rather than detract from their interests.
Amendment 31 would remove the ability of a court to make a suspended or prospective-only quashing order subject to conditions, and the ability for courts to give conditions can be important and is not unusual.
Amendments 4, 27, 38 and 25 all seek to remove or weaken the presumption in some way. Characterising the presumption as seeking to control the courts or remove their discretion is misleading, as I said back in Committee. My view is that including the presumption, combined with the list of factors in clause 1(8), will make the decision-making process consistent and thorough. That will assist in the speedy development of jurisprudence on the use of the new remedies, which has to be in the interests of justice for all the parties.
Amendments 28, 32, 33 and 35 all relate to the factors courts must consider in applying these new remedies. I would like to reiterate that the list of factors is there as a useful guide to the courts when considering the new remedies. It will help the jurisprudence to develop in a consistent manner. It is a non-exhaustive list, and not every factor will be relevant in every case. We trust the courts will understand that and apply the factors appropriately.
Turning to the remaining amendments to clause 1, amendment 34 proposes that there should be a specific requirement for a court to consider the effect these new remedial powers have on a claimant receiving a timely remedy. In fact, subsection (8)(c) already requires the courts to take into account the interest or expectations of those people who would benefit from a quashing, and I would submit that includes considering timeliness. Likewise, on amendment 24, the protections built into clause 1 mitigate the risk of a court being compelled to use the new quashing order powers where to do so would be against the interests of justice. Subsection (9)(b) of proposed new section 29A of the Senior Courts Act 1981 makes it clear that the court is only obliged to use the new modified quashing orders where it
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”,
and is not obliged to use them where
“it sees good reason not to do so.”
I submit that the concerns raised in amendment 26 are already mitigated by the drafting of the provision. The list of factors includes
“the interests or expectations of persons who would benefit from the quashing”
and
“any other matter that appears to the court to be relevant.”
Additionally, having considered those factors, the court can add any conditions to the quashing order. It could be, for instance, that the Government do not take any further action to enforce the unlawful decision.
Amendment 29 seeks to clarify that the principle of good administration includes the need for administration to be lawful. We would have thought that that was fairly obvious, and should always be the case.
Amendment 37 seeks to ensure that the courts take into account affected people’s rights under the European convention on human rights, including the right to an effective remedy under article 13 of that convention. I would argue that the requirement in the Bill for the courts to have regard to the interests or expectations of persons who would benefit from the quashing of the impugned act would include having regard to any remedy and its appropriateness.
I now turn to clause 2, and amendment 5 which seeks to remove clause 2 from the Bill. I remind the House of the arguments that I made in support of this necessary and proportionate measure in Committee. First, the Cart JR route essentially equates to a third bite at the cherry—a phrase that we probably have overused, but which I think to the uninitiated explains it very well—after both the first-tier tribunal and the upper tribunal have refused permission to appeal. Secondly, it is the Government’s responsibility to ensure that judicial resource is efficiently distributed. The success rate of Cart JRs is very low—around 3.4%, compared with 30% to 50% for other judicial review cases—indicating that it may not be the best use of judicial time.
Wera Hobhouse
Will the Minister accept that it is often a matter of life and death, and that therefore his argument does not really stick?
James Cartlidge
Those matters should be determined with—I hate the phrase—two bites at the cherry, which is common across most areas of law. That is perfectly adequate. The process takes up 180 days of High Court judges’ time on case with almost no chance of success. High Court judges’ time, in the context of the backlog we have, is very precious indeed.
I now turn to the amendments 43 and 42, tabled by the hon. Member for Glasgow North East (Anne McLaughlin). Just to be clear, the unified tribunal system, created by the Tribunals, Courts and Enforcement Act 2007, is a reserved matter where it relates to matters of reserved policy. The measures on Cart and, particularly in relation to Scotland, the Eba case will apply to the unified tribunal system within the UK, but it will not apply to matters heard that would fall inside the legislative competence of the Scottish Parliament and it will also not apply to devolved tribunals.
James Cartlidge
I am sorry; I have one more important Government amendment that I wish to cover. I apologise to the hon. Gentleman.
If the measure did not extend to Scotland even on matters that are not within the legislative competence of the Scottish Parliament, that would create an inconsistency within the unified tribunal framework based purely on geography.
Finally, the group also contains Government amendment 6 to clause 2. Subsection (4) of new section 11A sets out a number of exemptions, circumstances in which the supervisory court could still review a decision of the upper tribunal to refuse permission, or leave, to appeal the decision of the first-tier tribunal. One of those exemptions, subsection (4)(c)(ii), is if the upper tribunal acts in
“fundamental breach of the principles of natural justice”.
Clarifying the meaning of the natural justice exemption is the intent of the amendment. The Government accept that the meaning of natural justice is currently established in case law and relates to procedural impropriety. However, the understanding of the term has developed over time through common law and could develop further in the future.
As our intention is for substantive procedural errors to remain reviewable but errors of fact or law to be ousted, it is the Government’s view that the wording would be clearer if the amendment referred to procedure in the context of natural justice. That is not a change of policy; it is how the Government, and I am sure the majority of right hon. and hon. Members present, understood the clause during our previous debates and votes. However, this clarification should confirm to the courts exactly how Parliament intends the ouster clause to be interpreted.
Question put, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 2—Online Procedural Assistance—
‘(1) Online Procedural Assistance, must be made available and accessible to any party or potential party to proceedings governed by Online Procedure Rules that requires it. In delivering this duty, the Lord Chancellor must have due regard to the intersection of digital exclusion with other factors, such as age, poverty, disability and geography and deliver support services accordingly.
(2) It must include assistance to enable such a party or potential party to have a reasonable understanding of the nature of the proceedings, the procedure applicable under Online Procedure Rules and of how to access and navigate such procedure. To this effect, it will provide both advice and technical hardware, as appropriate, and will provide assistance to such individuals throughout the course of their proceedings.
(3) Anyone who requires Online Procedural Assistance must have the option of receiving it either via remote appointments or in-person appointments at a site local to them.
(4) Online Procedural Assistance must include, for a party or potential party whose first language is not English, assistance, by interpretation or translation as appropriate, in a language that is familiar to the party or potential party.
(5) The delivery of Online Procedural Assistance must be evaluated at yearly intervals by an independent evaluation team. To assist in these evaluations, data must be routinely collected relating to the protected characteristics of those using the service, outcomes of cases that used Online Procedural Assistance and the frequency and location of the appointments provided. This must also be made publicly available.’
This new clause clarifies the nature of online procedural assistance.
New clause 3—Review of the single justice procedure—
‘(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review of and publish a report on the effectiveness of the single justice procedure.
(2) A review under subsection (1) must consider—
(a) the transparency of the single justice procedure in line with the principle of open justice,
(b) the suitability of the use of the single justice procedure for Covid-19 offences, and
(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.
(3) The Secretary of State must lay a copy of the report before Parliament.’
New clause 7—Compatibility with Article 6 of the European Convention on Human Rights—
‘(1) This Act must be construed in accordance with Article 6 of the European Convention on Human Rights.
(2) If a court or tribunal has found a provision of this Act to be incompatible with Article 6 of the European Convention on Human Rights, it may, on application, make an order to that effect and that provision shall cease to have effect.’
This new clause would ensure the compatibility of the Act with Article 6 of the ECHR (right to a fair trial).
Amendment 36, clause 3, page 4, line 28, at end insert—
‘(1) Before this section may come into force, the Secretary of State must—
(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences;
(b) lay before Parliament the report and findings of this independent review; and
(c) provide a response explaining whether and how such issues which have been identified will be mitigated.’
This amendment would require a review of clause 3 before it can come into force.
Amendment 20, page 5, line 34, at end insert—
‘(e) the prosecutor is satisfied that the accused does not have any vulnerabilities and disabilities that impede the ability of the accused to understand or effectively participate in proceedings, having undertaken a physical and mental health assessment.’
This amendment would require that all accused persons considered for automatic online convictions are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
Amendment 21, page 5, leave out lines 35 to 37 and insert—
‘(4) An offence may not be specified in regulations under subsection (3)(a) unless it is—
(a) a summary offence that is not punishable with imprisonment; and
(b) a non-recordable offence, which excludes any offence set out in the Schedule to the National Police Records (Recordable Offences) Regulations 2000/1139 (as amended).’
This amendment would exclude any offences which are recordable from the automatic online conviction option.
Amendment 22, clause 9, page 26, line 1, leave out subsection (5).
This amendment would remove cases involving children and young people from the provisions of clause 9.
Amendment 40, clause 21, page 39, line 13, leave out “(3) and (4)” and insert “(3), (4) and (4A)”.
This amendment is consequential on Amendment 41.
Amendment 41, page 39, line 30, at end insert—
‘(4A) The Lord President of the Court of Session is to appoint one person with experience in and knowledge of the Scottish legal system.’
This amendment would require the Online Procedure Committee to include a person with experience in and knowledge of the Scottish legal system, appointed by the Lord President of the Court of Session.
Government amendments 7 to 19.
James Cartlidge
The Government’s new clause 1 will provide powers to vary the maximum prison sentence that magistrates courts can give for a single offence. Court recovery remains a top priority for the Government. We have considered all options to support recovery in the criminal courts and have already taken several steps, such as investing £250 million in court recovery in the last financial year. The most recent spending review settlement provides £477 million to improve waiting times for victims and to reduce Crown court backlogs caused by the pandemic.
James Daly (Bury North) (Con)
I have spent 16 years of my professional life trying to keep people out of prison. I have also worked within the current sentencing guidelines of six months. I support the Minister. Although I appreciate that this is a technical amendment, the magistrate should have increased sentencing powers—it is in the interests of justice. All my constituents welcome this, and we should be imposing deterrent sentences rather than the incredibly lenient sentences that are often handed out by magistrates because they do not feel that they have sufficient powers or length of sentence to replicate the seriousness of the offences that they are facing.
James Cartlidge
My hon. Friend has put his point on record, not least as someone who speaks with huge experience as a criminal solicitor—a voice of which we do need to hear more in these debates. It is an excellent point.
Magistrates play a vital role in our justice system. I would like to put on record, as I have done previously, my immense gratitude to our magistrates, our volunteer judiciary, for their work in tackling the backlog. They put in a herculean shift to bring down the backlog and make extra capacity, which we can now utilise.
James Cartlidge
I give way to my hon. Friend, the Chair of the Environment, Food and Rural Affairs Committee.
Neil Parish
I seek reassurance from my hon. Friend that this measure will speed up the process, so that we will see more people being brought to justice, and also more people getting their cases heard, so that justice is done.
James Cartlidge
I will explain very shortly what impact we expect this to have on the delays, which my hon. Friend is quite right to raise.
Just to be clear, in the coming months, we will be extending magistrates court’s sentencing powers from a maximum of six months to 12 months imprisonment for a single triable either-way offence by commencing existing provisions in the Sentencing Act 2020 and the Criminal Justice Act 2003.
Extended sentencing powers will allow for more cases to be retained in magistrates courts, allowing these cases to be heard more quickly and with the intended effect of reducing the backlog of outstanding cases in the Crown court. Just to be clear, we estimate that this will save nearly 2,000 Crown court sitting days per year. Magistrates are also fully capable of hearing these cases. They make sound legal decisions, which is supported by the fact that there is very low appeal rate of only 0.7%, 50% of which are dismissed or abandoned.
Sir Robert Neill
I, too, support this amendment. My hon. Friend will remember, or will perhaps know, that the Justice Committee has raised this in the past when we did an inquiry in relation to magistrates. A concern was raised by his predecessor that this might have an impact on the levels of those going into custody, but we were never able to find any evidence to support that. It seemed, essentially, anecdotal. Has any hard evidence been found to suggest one way or another?
James Cartlidge
The short answer is no. That is certainly my impression. The reason that we are making this change is that we have faith in our magistracy. I have spoken about the huge shift that they put in during the pandemic to get the backlog down in the magistrates courts. When it comes to trying to make guesses about what impact this will have, the key thing is to simply trust our magistrates to look at the case before them, to take into account sentencing guidelines, to take the advice of their legal advisers, and to make their sentence according to the circumstances of the case before them, which is how they always behave.
We want to make this change as quickly as possible, so that we can ensure maximum benefit for court recovery. That is why we will be implementing the policy on a national basis from the outset, rather than first running a pilot in select courts. This clause supplements the provisions to extend the sentencing powers of magistrates courts by introducing a power to vary the limit on the length of sentence that the magistrates courts may give to either six months or 12 months in the future. This will ensure that there is the ability to return to the current position in the event that any unsustainable adverse impacts materialise—of course, we sincerely hope they will not.
Taken together, this amendment and the magistrates’ recruitment campaign launched this week shows that this Government are committed to our magistracy and understand how important they are for court recovery.
Edward Timpson (Eddisbury) (Con)
I also support this amendment and the efforts being made by my hon. Friend’s Department and across Government to increase the ability of magistrates to hear and deliver justice. Can he confirm that, through this Bill, the raising of the magistrates’ retirement age from 70 to 75 will include those who have already been forced to retire at 70, so that, where there is local demand, they can come back and serve some of the justice that we now want to see being brought forward?
James Cartlidge
My hon. Friend makes an excellent point, because, of course, we do want to achieve precisely that. Just to be clear, it is not in this Bill. It is in the Public Service Pensions and Judicial Offices Bill that is going through at the same time—I spoke on its Second Reading. The key point, as my hon. Friend has said, is that it raises the mandatory retirement age to 75, and we think that that will have a significant impact. In fact, we have estimated that it could lead to 400 additional magistrates coming in at a time when we really need that resource because of the backlog.
We have tabled other amendments on employment tribunals. Amendments 7 to 19 to schedule 5 are minor and technical, and ensure that terminology used in employment tribunal procedure is up to date, and that it correctly reflects terms used in employment tribunal procedure regulations. There are of course a number of non-Government amendments in this group, and I will respond to them once we have heard from the Members who tabled them, towards the end of the debate.
Alex Cunningham (Stockton North) (Lab)
Let me first thank the Minister and other colleagues on the Bill Committee for their kind comments on the last day. Sadly, I was unable to join them because I had tested positive for covid Double vaccinations protected me well, and I got off lightly. I am also grateful to the Minister for his helpful engagement with many of our concerns in Committee.
The Opposition understand the need to modernise our court and tribunal proceedings, and we appreciate the potential of online and digital procedures to increase the efficiency of our courts for those who use them and work in them. However, we also recognise that alongside any innovative changes, appropriate safeguards must be introduced to ensure that access to justice and engagement in our justice system are not inadvertently hampered for anyone. I am concerned that the criminal procedure and online rules procedure sections of the Bill as drafted do not sufficiently safeguard access to justice, particularly for young people and children and people with vulnerabilities.
On Second Reading, the Lord Chancellor said:
“Physical hearings will always be available for those who need and want to use them, so that those who are uncomfortable or cannot access the digital and online applications will not be prejudiced.”—[Official Report, 26 October 2021; Vol. 702, c. 195.]
While I welcome that commitment from the Lord Chancellor, I do wonder why the Government would not go so far as putting such safeguards in the primary legislation, instead choosing to vote down every Labour amendment that tried to secure the rights of young and vulnerable individuals to engage with the justice system in the way most suitable for them. Today we are giving the Government a second chance, and I hope that the Minister uses it well and supports the amendments we have tabled.
Before I come on to the Opposition amendments, I will address new clause 1 and its consequential amendments, as we were not able to scrutinise these proposals in Committee. At this stage, I join the Minister in praising the work of our magistrates up and down the country. They do a grand job, often in very difficult circumstances. However, I do not understand why we did not have the opportunity of full legislative scrutiny of these proposals in Committee, rather than their being tabled at this late stage. Indeed, in response to an intervention from the hon. Member for Warrington South (Andy Carter) on Second Reading, the Lord Chancellor confirmed that the proposals were already being considered at that time.
Ministers have explained that new clause 1 is intended to provide additional capacity to help decrease the burgeoning backlog of cases in the Crown court. In the Ministry of Justice’s own statistics, released just last week, it has been revealed that delays in the criminal justice system have hit a record high. It takes an average of 708 days from the commission of an offence to the completion of a criminal case in the Crown court, so we need action. The Opposition want to see dramatic decreases in these numbers, and will support the Government in measures that will genuinely contribute to a reduction in the backlog. However, I seriously doubt that increasing sentencing powers of magistrates will have the measurable impact that all those involved in the criminal justice system are crying out for.
According to the Government, the measures could
“save 1,700 sitting days in the Crown Courts by enabling 500 jury trials to be switched to magistrates”.
It appears, however, that that estimate presumes that defendants will not exercise their right to opt for a jury trial. Will the Minister tell the House on what basis the Government have made this presumption? It strikes me that one of the primary reasons for not electing for a trial in the Crown court is in fact the lesser sentencing powers of magistrates, but as this cap is increased, I imagine that a trial by jury may seem a more appropriate option for more defendants and so they will still end up in the Crown court. Even if all defendants did choose not to exercise their right, the Government’s plan would represent a tiny saving overall.
I see that Jo Sidhu QC, chairman of the Criminal Bar Association, has also suggested that the increase in magistrates’ sentencing powers will not have the effect that the Lord Chancellor hopes, as it will lead to more cases being appealed in the Crown court, thereby potentially increasing rather than reducing the workload.
James Daly
That assessment is completely at odds with my 16 years of working in this field. When a case is committed to the Crown court, it is on the basis of the maximum sentence that could be imposed in the circumstances. The increase in sentencing powers will bring many more cases—burglary, affray, first-time offenders—back into the magistrates courts and avoid the ridiculous situation whereby straightforward cases that can be dealt with in a magistrates court are committed to the Crown court for no reason.
Alex Cunningham
I am not saying that we oppose the proposal—Labour legislation first put it on the statute book—but people in the magistrates courts will get higher sentences and may well feel the necessity to appeal, so we will potentially have more appeals.
Andy Carter (Warrington South) (Con)
Following on from my hon. Friend the Member for Bury North (James Daly), one of the main reasons for cases going to the Crown court is that magistrates refuse jurisdiction and send them there. There is no certainty that higher sentences will be given to individuals who are found guilty. They may well get exactly the same sentence in a magistrates court as they would get in a Crown court. The hon. Member for Stockton North (Alex Cunningham) is confusing the issue. The fact that magistrates can now keep a case in their court without having to refer up to a higher court will reduce the backlog in Crown courts.
Alex Cunningham
We believe the potential is there, but we want to understand the statistics on which the Government have based the proposal. However, I will move on now.
Have the Government taken into account the potential increase in appeals? I imagine that could quickly offset the 1.6% saving in sitting days. The increase in sentencing powers is interesting in the context of existing provisions in the Bill, particularly in relation to the new allocation procedure.
As Justice points out, there is a risk that more serious cases
“could proceed without defendants being physically present for a hearing, and as such without the defendant’s informed input as to whether the case should be heard in the Magistrates’ or Crown Court.”
It is also important to consider the proposal in the light of clause 9, which will allow hearings to take place in the absence of the defendant in many circumstances. Can the Minister share any assessment that the Department has made of the potential impact on appeals to the Crown court of introducing the increase in sentencing powers at the same time as the new allocation procedure and clause 9?
As the Minister outlined, new clause 1 will enable the Government to switch off and back on the maximum custodial term that a magistrates court may impose for an either-way offence—in other words, he is taking the power to reverse these new sentences when it suits the Lord Chancellor. I am interested to hear in what circumstances the Minister would want to reduce magistrates’ sentencing powers in future. Will that be triggered by the backlog reaching a certain level, or does he think there is a high risk that there will be unintended consequences, such as those that the CBA, Justice and I have described?
The whole approach suggests that the Government are not too confident that the proposal will be the success that they hope. Until Ministers address the shortages in judges, criminal practitioners and appropriate court space, victims and defendants will continue to suffer excessive waits until their cases are concluded.
I will now move on to the Opposition’s amendments and new clauses, which, as I explained earlier, aim to introduce a number of safeguards into the Bill to ensure that access to justice is not hampered in the drive towards efficiency that online and remote processes can offer.
Clause 3 creates an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing.
The process rightly already has some limitations. For example, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. The Opposition agree with those limitations, but we think they need to go further. Amendment 20 would require that all accused persons considered for automatic online convictions, as introduced by clause 3, are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.
The Equality and Human Rights Commission has recognised that remote justice is unsuitable for disabled people, such as those with learning difficulties, cognitive impairments or mental health conditions. The commission identified that remote proceedings reduced chances to identify a court user’s additional needs and make the appropriate adjustments. I know the Minister will share my anxiety that further roll-out of remote processes without the right safeguards may compound those inequalities even further. A recent criminal justice joint inspectorates report emphasised the need for default screening of all criminal suspects and defendants for disability, including neuro-disability. That proposal was supported by the former Lord Chancellor, who promised action on this issue. I sincerely hope his successors will uphold his promise by supporting this amendment.
I am aware that it is the Government’s intention for online pleas to be entered via the common platform, which potentially provides at least one instance where a court user’s needs can be identified so that adjustments can be made. However, the ongoing chaos with the common platform demonstrates why that would not be a sufficient safeguard in this regard. The pilot and early adopter sites have established that in its present form, at least, the common platform is not fit for purpose. The experience of the pilot courts has been widely reported to the Public and Commercial Services Union as disastrous. Their members have been working late into the evenings in an attempt to record case outcomes, with work often disappearing into thin air. Case outcomes that took a matter of seconds to record in a paper file are now taking in excess of an hour to record, provided the system is even working. Although Her Majesty’s Courts and Tribunals Service has taken steps to address slowness and instability since the intervention of the senior presiding judge in pausing the roll-out last year, PCS does not accept that those steps have addressed the fundamental design flaws. Results still routinely disappear from the court record.
I am told that confidence in the common platform at the Crown Prosecution Service—the common platform was initially a joint CPS and HMCTS venture—is so low that the CPS has retained its case management system and is using that in preference to the platform. Given the low level of confidence in the system among the professionals who use it, I am sure the Minister can recognise why I do not believe it should be relied on as a safeguard as more remote justice procedures are introduced and rolled out. Instead, he should listen carefully to the EHRC’s findings and introduce meaningful screening measures.
I turn to amendment 21, which would introduce a further safeguard to the automatic online conviction and standard statutory penalty procedure by excluding recordable offences from its purview. When I raised my concerns in Committee about the application of the AOCSSP to recordable offences, the Minister confirmed:
“There is currently no intention to extend the procedure to any recordable offences.”––[Official Report, Judicial Review and Courts Public Bill Committee, 9 November 2021; c. 228.]
The Opposition welcome the Minister’s words, but we would prefer to see that confirmed in primary legislation. The Bill already limits the use of the procedure to summary and non-imprisonable offences, but the consequences of a recordable conviction, even for such an offence, can still be serious. Many people will not understand the impact that a conviction can have on their lives. For example, it can have a detrimental impact on employment prospects in certain sectors.
In its current format, it seems as though the AOCSSP will incentivise people to plead guilty out of convenience, regardless of whether they have an arguable case. I am sure the Minister will agree that it is vital that no one is adversely impacted by pleading guilty without recognising the full impact. If the Government agree with that point, I hope the Minister will confirm that support by limiting the procedure in primary legislation to non-recordable offences.
I now consider amendment 22, which would remove children from the provisions of clause 9. Again, in Committee the Minister provided me with additional briefing on this point, for which we were very grateful. It was not, however, enough to quell my concerns about the fact that courts will be able to proceed if a child defendant is absent from a plea and allocation hearing. In Committee, the Minister confirmed that he recognises that
“in the majority of cases, the courts may not deem it appropriate to proceed”––[Official Report, Judicial Review and Courts Public Bill Committee, 16 November 2021; c. 271.]
in the absence of the child. Given that, I do not know understand why the Government insist on keeping the provision in the Bill. I have spent much time in this role trying to unpick Government proposals that treat children more and more like adults in the justice system, in both this Bill and the Police, Crime, Sentencing and Courts Bill. It is extremely worrying to me that here we have yet another example of the Government failing to treat children in an appropriately distinct way. It is the position of the Opposition that they should be removed from the scope of the clause entirely.
Sir Robert Neill
All in all, this is a valuable Bill and I welcome the Government amendments. I practised criminal law for the better part of 30 years before I came into the House—in both magistrates courts as a younger barrister and then predominantly in the Crown court, both prosecuting and defending. It never seemed logical that the legislative provision introduced by the Labour Government in 2003 had not actually been brought into force.
Much has changed since that time in the way magistrates operate—and for the better, frankly. It seems to me that there have been real efforts to make the bench more diverse, and those recruitment activities are continuing. As a Select Committee in the previous Parliament, we wrote a report about the magistracy—the first for a number of years—that recognised the value of the work that magistrates do. Since 2003, the sentencing guidelines have been developed to a high degree and they are available now to all benches as well.
Andy Carter
My hon. Friend mentioned a diverse bench. Does he agree that it is vital that employers think about the value of having employees on the bench? They should be considering that step in personal development for employees.
Sir Robert Neill
I salute my hon. Friend’s work as a magistrate over many years. What he says is absolutely true, and the Justice Committee report picked the point up at the time. When I practised in parts of east and central London, magistrates benches used to have a very high number of what we would now term blue collar workers—frequently trade union officials and public sector workers. They were given time off. Some of the major employers—Ford at Dagenham in the old days, for example—used to allow employees time off to serve as magistrates. The courts were much the better for that. I hope that that can be encouraged and we should make it easier to achieve.
We should also look at magistrates’ expenses, which have not been updated for very many years. We do not need legislation to do that, but we should make it worth people’s while to serve and not leave them out of pocket. That is important.
When the Committee published the report and considered why the provisions in the Criminal Justice Act 2003 had not been brought into force, we questioned the evidential basis. At that time, the Ministry of Justice’s line was that there was a risk of an adverse impact on the prison population, but we were never able to find any evidence to establish that. I think there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be. In fairness, when I first started, there might have been a bit of anecdotal evidence that I came across to support that view, but things have moved on over the years. The benches have a more sophisticated approach to sentencing and the guidelines have developed to such a degree that that dimension has changed.
James Daly
I truly wish that my hon. Friend would come to Bury magistrates court, then he would know a bench of magistrates who were willing to impose the stiffest possible sentences. My hon. Friend the Minister referred to the backlog, on which this debate is framed. I am a member of the Justice Committee, under the excellent chairmanship of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). We should be considering the measures in terms not just of the backlog, but of the new offending that comes into the system. I believe the measures will give confidence to the police and to other partners in the criminal justice system that, instead of creating more backlog, by releasing more people under custody we can get them before the magistrates, sentenced and dealt with at the earliest opportunity.
Sir Robert Neill
I agree with my hon. Friend and recognise his experience in the field. I do not think this needs to be framed as a backlog-reducing measure. There is merit in the measure in its own right, as there was in 2003 when the Labour Government introduced it. With all due respect to the Minister, it does a bit of disservice to the measure to say it is done to reduce the backlog, and that it can be reversed. I would hope it would not be reversed; it is desirable in terms of a better allocation of case time, and it is a better use of court arrangements to keep lower level cases in the magistrates court.
A powerful point was made about the reduction in the number of committals for sentence and those cases when the magistrates refuse jurisdiction in relation to either-way offences. I do not think that will be eaten away by people electing that course of action needlessly, particularly if they have good and sound early legal advice.
That is where I think we can improve the system. Doing so does not require our legislating in this Bill, but we should make sure that when we revise the legal aid system, we front-load it so that there is proper legal advice available from solicitors at a very early opportunity to get informed pleas and early disclosure into the system. That will of itself be likely to keep more cases down at the magistrates court level, and would get more pleas. When they are confronted with the reality of the evidence, and with sound advice, more people will accept that they should enter a guilty plea when they have committed an offence.
That is the right way to deal with the issue, which is why I think the amendment is entirely justified in any event. Of course, it has to be applied on a national basis. The idea of a pilot never seemed realistic and would be against the principle of natural justice. It could not be right if there was a postcode lottery and someone could get a higher sentence in Bury than they could in Bromley because one was in the pilot. We either do it nationally or not at all, and the Government have made the right call.
I hope we will continue to invest in training and professional support for the magistracy, which again our Committee report called for.
Edward Timpson
We have to remember that magistrates sit not only in the criminal courts, but in the family proceedings courts. Support and advice, and the recruitment of magistrates, will be really important in making sure that children and families are also getting justice through the family court system.
Sir Robert Neill
That is entirely true. We know that there is sometimes a struggle to get sufficient magistrates to sit in the family jurisdiction. They are absolutely crucial. There is a separate piece of work that needs to be done, so that, as with early legal advice, informed decisions and choices are made. That applies in the magistrates court in the criminal jurisdiction and also to decisions that have to be taken in family court proceedings. I am a great believer that the lawyer is the best route into mediation in many family law cases. Having the magistrates end of the family jurisdiction treated seriously is really important for doing justice and for the early resolution of issues for the benefit of the parties and the children involved.
Alex Cunningham
The Chairman of the Justice Committee, as always, talks very clear sense. If we are going to have all these training programmes, attract people to the magistracy and everything else, we will need resources, so will he join me in encouraging the Lord Chancellor to go banging on the door of the Treasury to say that it is time that we took this matter seriously?
Sir Robert Neill
I understand the spirit in which the shadow Minister makes that point. He will know that the Justice Committee has said on a number of occasions that we cannot get justice on the cheap. I accept that we cannot write blank cheques, but the fact is that the proportion of total public spending that goes on the court system is a fraction of a fraction. We get justice for a very small amount of overall public spending in this country and a modest increase in that could be entirely justified, even within the existing budgets. With the increase in the Department’s allocation in the last spending, there is scope to do that. However, in terms of a greater reprioritisation of Government spending, more weight ought to be given to the importance of an effective justice system. It is a fundamental part of a democratic society and of the rule of law, and the magistracy are a key part of that.
I understand the spirit in which the shadow Minister spoke to a number of his amendments. I have sympathy with a lot of the thrust behind them and I hope that the Government will take them on board. I do not think that they need to be written in legislation, but there are issues relating to the way in which the single justice procedure operates. I am not against this—I think we have all seen what happens in magistrates courts when a bench sits in an entirely empty court going through a whole list of TV licence defaults or road traffic offences where nobody has attended. That is not a good use of time.
A fair point was raised with the Justice Committee about this issue in relation to open justice. More needs to be done to improve, for example, publication of the lists online so that people can be aware of what is happening and what can be done in relation to the publication of the results. That does not require legislation, but it should be invested in. Again, it is a small amount in the overall scheme of things.
I also share some of the concerns about the operation of the Common Platform. We have to accept that that is not necessarily a silver bullet; virtually no public sector IT system ever is. We have to continue to invest in it, but we cannot ultimately get around the fact that criminal justice—in fact, all justice systems—ultimately depends on the quality of the individuals in it. The technology is there to help, but ultimately, it is the good-quality lawyers, good-quality judges and good-quality probation professionals who help.
James Daly
My hon. Friend is making an excellent speech. On the justice system and quality individuals, does he, like me, welcome Sir Christopher Bellamy’s report and recommendations, and would he encourage Front Benchers to take a very favourable view of them?
Sir Robert Neill
I know we are straying towards the edge of the topic, Madam Deputy Speaker, but I think this is germane, because to make these reforms to the court system work, we have to invest in the professionals who operate in it. I welcome Sir Christopher’s report; it is immensely well researched and immensely well written. The truth is that within the uplift in the Department’s funding, there is scope, I say to the Minister, to implement Bellamy over the period of the spending round. I know that he has had constructive engagement already with Sir Christopher, and I urge him and his colleagues to continue to do so. We should thank Sir Christopher for his work.
I hope, therefore, that we will support the Government amendments. I hope that the Opposition will not press their amendments to a vote, but they raise legitimate issues that the Government should take on board. We all want to co-operate on having a court system that works. Efficiency should not be a matter of partisan debate, because justice must continue to be there, and the more settled arrangements we have across the House, the better confidence will be.
Finally, I express my thanks to magistrates. I have many friends who have served as magistrates. They do a very great public service, but the more magistrates we can get who are younger, the better. We have done pretty well on gender diversity, but we need to do more about recruiting magistrates from ethnic minority communities. That must continue to be a priority. I hope that that will be done by valuing the job; by giving them the resources, and that includes the physical resources and the buildings they sit in, many of which are pretty woeful; by a more imaginative approach to local justice—to where custody cases, for example, are not necessary and to listing cases nearer to people’s homes—by making it easier for witnesses to get to courts, because that was a concern that we raised in our report on access to justice some years ago; and by encouraging the best-quality people to go into the work that is done at the sharp end. That work, actually, is largely in the solicitors’ profession—I say that as a member of the Bar—because they are the people who do the police station call-outs, the early advice and the first appearances in front of magistrates. That is why Sir Christopher’s report, in that regard, is very important.
Anne McLaughlin
You will be pleased to know, Madam Deputy Speaker, that most of the SNP’s objections are around judicial review, so I have only two amendments that I want to speak to and I can do that within a couple of minutes to give other people time to speak.
The online procedure rule committee will potentially cover wide areas of law and will sometimes make rules applicable in completely distinct legal jurisdictions. The SNP is concerned about the lack of representation on the committee from Scotland. Amendments 40 and 41 would therefore ensure that someone with knowledge and experience of the Scottish legal system will be appointed to the committee and that appointment should be made by the Lord President of the Court of Session in Scotland. I cannot see any reason to say no to that. That would address the imbalance in the representation of the Scottish legal system and allow the Government to keep up their pretence about respect for Scotland ahead of an independence referendum.
I say to Labour colleagues—I do so gently because the Labour Members present were on the Committee and we very much enjoyed working collaboratively with them—that I was a little disappointed that, with one notable exception, they abstained on amendments that would in effect have allowed Cart judicial reviews, or Eba judicial reviews as we call them, to remain in Scotland. I ask them to consider voting for this simple little measure so that we would have someone with experience and knowledge of the Scottish legal system to represent our system on the committee.
New clause 7 in my name would ensure the Bill’s compatibility with article 6 of the European convention on human rights: the right to a fair trial. To return to the example I gave earlier about the employment tribunal fees judgment in 2017, if the Bill had been in place when that landmark ruling was handed down, no one would have had fees refunded, everyone would have continued to pay the unlawful fees and, going forward, the Government could have simply changed the unlawful so that it was lawful: in other words, there would be no point whatsoever in taking the Government or other public bodies to court. The chilling effect would be widespread. That is surely a breach of article 6, which gives people the right to a fair trial and an effective judicial remedy. The new clause would allow judges a way to disapply the Bill if they considered there was a breach.
Let me give one more example of a group of people who may be refused their rights to a fair trial if the Bill passes: those who require legal aid. To secure legal aid, applicants must be able to demonstrate a tangible benefit if their case is successful. As I and others have demonstrated, if the Bill is enacted, there will regularly be no tangible benefit. If the Government are trying to keep people on average and low incomes away from being able to bring judicial reviews and access justice, they are doing a very effective job, but they should at least be honest about that. They have said and will keep saying that the Bill is compatible with article 6, but surely that begs the question: why do they continue to resist any amendment to ensure compatibility?
Andy Carter
It is a pleasure to speak in the debate in support of the Government’s new clause. The Minister and hon. Members will know that I continue to sit in magistrates courts; I am on the Merseyside bench at courthouses in Sefton in north Liverpool, in Liverpool city centre, in Birkenhead and occasionally in Chester and Crewe. I decided to do so because I felt that, as a Member of Parliament, it would be incredibly helpful and informative to continue to go into courts to understand the issues that magistrates and members of the legal profession face, as well as to hear and see those experiencing the criminal justice system from the other side.
In the last 10 years, I have seen tremendous change in the operation of the courts, which my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) mentioned, all of which has been designed to make the system more efficient. I think it is fair to say that some of the changes—closing court buildings in particular—have been pretty unpopular with members of the judiciary and members of the legal profession. After Dale Street magistrates court in the centre of Liverpool closed—a wonderful old building that had proper courts—and magistrates moved into the Queen Elizabeth II law courts where the Crown court is held, I wondered for a time what that would do to our magistrates courts. On reflection, knowing that four other buildings contained courthouses in Liverpool, I could completely understand why those decisions were taken. The waste that we were seeing within the system was unjustifiable. Our ability to reduce the amount of buildings and focus on developing technology and investing in courthouses to improve the facilities is critical. The ability to invest in the number of professional judges sitting as district judges has enabled a swifter and more effective process in the magistrates courts.
Many members of the magistracy have seen the number of magistrates in the courts continue to fall, which is one of the concerns. and I am pleased that the Government are taking steps to address that. Another area of concern was the centralisation of certain types of cases in certain courthouses. Let me give the House an example. On Merseyside, all motoring offences are now dealt with in Birkenhead, so if a magistrate regularly sits only in Liverpool city centre, they will never come across a motoring case. It can sometimes be a bit of an issue for magistrates to get their head around such issues if they are faced with an appeal, or an issue that has been referred back to their court, and they have not dealt with a motoring offence for some time. I say to the Minister that the ability for all magistrates to deal with all issues is really pertinent in the criminal court.
As the Minister said, magistrates play a fundamental role in our society, covering the overwhelming majority of criminal cases that appear in our courts. I want to join hon. and right hon. Friends in paying tribute to the 13,000 magistrates in courthouses across England and Wales, and to recognise and put on record the sacrifices that they have made throughout the covid pandemic. The overwhelming majority of courthouses stayed open. The magistrates, who were all volunteers, turned up to do their public duty. We should recognise the value that that has given to local society up and down the country. They have ensured that speedy justice has been delivered. I saw magistrates adapting and moving into Nightingale courts in Liverpool, in the historic St George’s Hall, where they continued to provide an outstanding service to the people of Merseyside and Cheshire.
The news this week that the Government are promoting a recruitment drive for 4,000 new magistrates is very welcome. They truly are the unsung heroes in our justice system. We need to ensure that people from every part of our society are represented in their ranks. I urge the Government to look at the recruitment process and the length of time it takes from applying to becoming a magistrate to actually sitting. I know many people who have applied to become a magistrate but who have fallen off during the process because it seems to be endless. The local advisory councils have historically been responsible for selecting magistrates. The Government need to consider that process carefully. The regular meeting of those advisory panels needs to be focused on.
I welcome the news that magistrates’ sentencing powers will be increased from six months to 12 months to help drive down waiting times and bring the criminal justice process to a speedier resolution. As the Minister and the Opposition spokesman mentioned, I have raised this in the House on numerous occasions, and I am delighted to see that it is now moving forward. I thank the Minister for taking this forward and making it happen. Ministry of Justice figures show that victims are waiting more than 600 days for justice after crimes are committed to the Crown court, a rise of more than 50% in the past year. Such delays increase the pressure on defendants, witnesses and victims of crime. The increase in sentencing powers will mean that less serious crimes can be heard much more speedily in magistrates courts, freeing up around 2,000 extra days in Crown courts.
James Daly
Based on his long experience in the magistracy, does my hon. Friend agree that the increase in sentencing powers is not going to have a great impact on the magistrates? They are not suddenly going to decide to send to prison everybody they previously would not have sent to prison because of that increase; it simply expands the sentencing range open to the court. I join my hon. Friend in praising our magistrates, who are experienced, common-sense people from their own communities who make decisions in the interests of justice.
Andy Carter
My experience is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence. Of course, all magistrates, no matter their length of service, sit with an experienced legal adviser who guides them through every step of the process from a legal perspective, so I absolutely agree with my hon. Friend that it will not make a significant difference in that respect.
I know that the idea of changing magistrates’ sentencing powers has polarised opinions, with some saying that lay members of the judiciary should have no powers at all to impose custodial sentences. I am afraid I do not agree: magistrates play an important part in the sentencing process and the role of legal advisers in the courts ensures that the right sentence is given in the overwhelming majority of cases. The Minister mentioned that less than 1% of cases that go into magistrates courts appear in the Crown court for an appeal. I serve on a Crown court appeals panel and there are very few occasions on which I feel that something is wrong and the sentence given should be overturned.
The Minister mentioned that the increase in the retirement age for magistrates is covered in another Bill, but it is important that all these steps are taken together. My hon. Friend the Member for Eddisbury (Edward Timpson) introduced an excellent private Member’s Bill to address the issue, which the Magistrates Association has looked at carefully. Many good, experienced magistrates —presiding justices who chair the benches—are approaching 70 or have gone over that age but can contribute significantly to the work of the courts.
I am delighted that the Government have addressed the issue and look forward to welcoming back colleagues with whom I have served who can bring their experience back into the courthouse. We must remember that when new magistrates are recruited they can sit as wingers for the first five years of their time in the court, and it is important that they sit with experienced magistrates. If we did not address that issue and all the magistrates were reaching retirement age, we would have a serious problem in respect of experienced presiding justices in the magistrates courts, so I am pleased that that increase is to happen.
I wish to touch for a moment on the proposal to make changes to local justice areas. I recognise the importance of local justice and defendants, victims and witnesses not having to travel too far to attend a courthouse, but from a magistrate’s perspective there are some perverse issues with local justice areas. Let me give the House a couple of examples. I live on the border of Greater Manchester but operate in the Cheshire and Merseyside area. The courthouse in Greater Manchester is closer for me to get to, but because I am not in the Greater Manchester local justice area, I cannot sit in that court. That makes no sense at all, so I urge the Minister to look into new ways of thinking about local justice areas for magistrates so that they can sit in whichever courthouse is closest to them, no matter what local justice area might apply.
I was recently given another example by a magistrate who sits in Highbury but lives in Hertfordshire. His court in Highbury does not sit at the weekend—it has no operation at the weekend at all—so he is a working magistrate who is available to sit in the courthouse on Saturdays but, because he does not operate in the Hertfordshire local justice area, he is not able to sit at the weekend, when he is most available. It would be really valuable to create the flexibility for magistrates to sit in areas that are convenient for them and where they understand the pertinent local issues.
As I said, it is important that we recognise that defendants, victims and witnesses should not have to travel long distances and rack up travel costs. It is really important that justice is done locally and I would not want to see trials and cases listed for courts many miles away from the local area.
I want to talk briefly about technology. I have seen a number of different technologies used in courtrooms, and a number of different systems trialled—Common Platform has been mentioned—and one thing I have seen is that, whatever system is put in place, the legal advisers are brilliant at adapting how they operate, particularly in magistrates courts. I know that magistrates courts have had to make some changes recently and that some things are not quite as quick as they used to be, as legal advisers are recording cases at the same time. I think the Opposition spokesman talked about paper files. Any suggestion that we want to go back to using paper files in courthouses is really not the way forward. When I first started as a magistrate, we all had a big book containing all the sentencing guidelines. Everything is computerised now, and the ability to look up sentencing guidelines or to calculate fines on a laptop is really valuable. I think that all magistrates would recognise that, despite some early hesitancy, we now have a far better system.
My final comments on the changes in magistrates courts reflect the point I made earlier to my hon. Friend the Member for Bromley and Chislehurst about younger magistrates. The Young Magistrates Network has made some really good inroads into understanding the perspective of being a JP while holding down a full-time job. I welcome the extension of the retirement age, but we also need to think about how we have as wide a talent pool as possible. We should have on the bench hard-working members of society who are in employment. If we are getting to a situation where only retired people have the time to sit on the bench and are selected, that is really dangerous.
Importantly, I also think that parents should be encouraged to sit on the bench, particularly in youth courts, because the knowledge and experience of being a mum or dad can be so very valuable when talking to a young person appearing before a youth court.
Sir Robert Neill
My hon. Friend makes an important point about the youth courts. Does he agree that it is often not appreciated that the youth courts deal with very serious matters which, if they involved adult offenders, would undoubtedly go to the Crown court, and that requires not only the best possible lawyers, but the most experienced and diverse magistracy available to deal with those important cases, just as we would expect for a jury, with the same level of experience of the world that is brought to bear across the piece?
Andy Carter
My hon. Friend is absolutely correct. The sentencing powers of youth courts are already far greater than those in magistrates courts for criminal offences. I do not sit in youth courts, but I have observed them and I know that the conversation and dialogue that takes places between the bench and the young person who finds themselves in court is very different. We do need a really broad, balanced bench in the youth court. I encourage the Minister to look at what support he can give to encourage employed people and young people to come into the magistracy.
The Young Magistrates Network—it is co-ordinated by a young magistrate, Luke Rigg, who has done a marvellous job of looking at this area—has made some very good recommendations, which I think HMCTS is now considering as part of its review. We need to ensure that any recruitment campaign is targeted, using social media, in the right places. I encourage the Minister to look at the school governors’ network, which has done a really good job of talking to employers about the value that somebody who is a school governor can bring to their business. I think that magistrates can also bring a tremendous amount to a business.
Since coming to this House, I have pushed for a number of things to happen in relation to the magistracy. I have raised three or four issues many times, so it is absolutely brilliant that the Minister is putting them all in the Bill. It is like all my birthdays coming at once: everything is happening on the right day. I am very supportive of the Bill. I thank the Minister for engaging with the magistracy and the Magistrates Association, for listening to JP colleagues and for the progress that we are making.
Janet Daby
It is always a pleasure to speak under your chairmanship, Mr Deputy Speaker. I fully support the Opposition amendments and the safeguards that my hon. Friend the Member for Stockton North (Alex Cunningham) outlined so eloquently, especially new clause 2 on online procedural assistance and new clause 3 on the review of the single justice procedure.
I will speak mainly about case backlogs and the online procedure rules in the Bill, but may I first say a few words in response to my constituency neighbour the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee? I was on the Justice Committee when it was looking at magistrates, and I remember many magistrates coming to meet us on the estate before covid.
I agree that we need to continue to appreciate our magistrates and make sure that they have the support they need to do their job extremely well. We also need to recognise that they have been vital during lockdown as key workers, in situations made extremely difficult by the backlogs that they have had to endure. I agree that we need younger magistrates and magistrates from more diverse backgrounds; as hon. Members may or may not know, there are also many judges from diverse backgrounds who want to be promoted up the ranks. We need to be mindful of ensuring a diverse bench of judges.
Mr Deputy Speaker, our
“criminal justice system is at breaking point.”
Those are not my words, but the words of Derek Sweeting QC, the then chair of the Bar Council. The backlog of criminal cases had pushed past 60,000 by June 2021 and is still increasing. To address it, we need to modernise our court systems. New technology can bring efficiency and help to address the backlog, but our drive to improve the court system should never come at the cost of safety or justice. For example, the online procedure rules set out in the Bill will enable more work to be completed remotely via the internet; one can see the immediate time-saving benefit, but the new rules risk excluding those without internet access or those who are less digitally literate. It is also vital that the online procedure rule committee that will shape the digital rules should reflect the diversity of Britain, which will help to protect the criminal justice system from further bias or any discrimination.
To ensure that all adequate safeguards are put in place, will the Minister commit to an independent pilot of the new technology before its general application? People in poverty do not necessarily have access to new technology, so we cannot take that access for granted or even assume that they are able to use the systems.
While it is important to explore modern solutions, we must not let that task distract us from the reality that our legal system simply needs more funding. There is no silver bullet to solve the crisis in our courts, and no magical technology will appear over the horizon to wipe away the vast number of backed-up cases. New technology and increased funding must go hand in hand. The National Audit Office recommended that £500 million of extra funding would be required between 2021 and 2024 to keep the backlog below 50,000. The Minister should follow that advice and promise that extra funding for our overburdened court systems.
James Cartlidge
It is a pleasure to follow the hon. Member for Lewisham East (Janet Daby), who makes a very good point about diversity. The new recruitment campaign that we have launched for magistrates this week is very clearly focused on attracting a more diverse audience of potential participants to consider joining the bench.
In fact, the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), said that the increase in sentencing powers must not just be a backlog measure—and it is not. I will give a good example of that: on the day that we announced the change, I am reliably informed that “How do you become a magistrate?” was one of the trending searches on Google. The serious point is that the very fact of raising those powers shows our commitment to the magistracy and, in my view, will help to attract more people, because it shows how seriously the Government are taking it.
Mr Deputy Speaker (Mr Nigel Evans)
We now come to amendment 20, which has been selected for separate decision.
Clause 3
Automatic online conviction and penalty for certain summary offences
Amendment proposed: 20, page 5, line 34, at end insert—
“(e) the prosecutor is satisfied that the accused does not have any vulnerabilities and disabilities that impede the ability of the accused to understand or effectively participate in proceedings, having undertaken a physical and mental health assessment.”
This amendment would require that all accused persons considered for automatic online convictions are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.—(Alex Cunningham.)
Question put, That the amendment be made.
James Cartlidge
I beg to move, That the Bill be now read the Third time.
The Bill has received careful and sometimes impassioned scrutiny from Members on both sides of the House, and I thank all hon. and right hon. Members who have contributed. Were I to summarise the Bill in a nutshell, I would say that its common thread was streamlining our courts, not least so that we can bear down on the backlog that has built up during the pandemic.
Joanna Cherry
The Minister says that the Bill has received careful scrutiny. Does he agree that it is unfortunate that this Bill, which seeks to limit the jurisdiction of the Court of Session in Scotland, to use his own words from his letter to me dated 11 November, has not received the scrutiny of the Scottish Parliament, within whose purview the jurisdiction of the Court of Session and judicial review lie?
James Cartlidge
I respect the hon. and learned Lady’s considerable expertise in these matters. I did write to her on that, and I think I answered that question earlier. We scrutinised the Bill in great detail in Committee, but I accept the strength of her view on that point.
Part 1 of the Bill strengthens judicial review, ensuring that it continues to serve justice and good public administration. This would not have been possible without Lord Faulks and his panel, who produced an independent review of administrative law. Their thorough work in this area is of great importance and laid the foundations for the measures in the Bill. As it stands, the Bill delivers on commitments that we made ahead of the last general election. It offers more flexibility to judges and puts more tools in the judicial toolbox.
The reforms in part 2 modernise and improve aspects of the court and tribunal system. The measures support court and tribunal recovery, and deliver improvements to the criminal justice system and to coronial processes. They build on the lessons of the pandemic and will increase the efficiency, adaptability and resilience of our justice system.
Today we have also included provision in the Bill for a power to vary the maximum sentence that the magistrates court may give for a single triable-either-way offence. This is part of our plan to extend the sentencing power of magistrates, so that we can keep more sentence hearings out of the Crown court, freeing up capacity to help us to tackle the backlog more quickly. That extension will help us to retain more cases in the magistrates courts, reducing the flow of cases into the Crown court, and will help to support recovery in the Crown court, where it is so important. It is estimated that it will save around 2,000 Crown court sitting days per year, which is the equivalent of 500 jury trials, allowing us to reduce the backlog more quickly.
I thank all hon. Members who contributed to debate on the Bill, particularly the members of the Bill Committee, during which time we made some clarificatory amendments to the Bill. I also thank the witnesses who joined us in Committee; the range of contributions from experts of considerable esteem greatly enriched our debates. Finally, it would be remiss of me not to thank the excellent officials from the Ministry of Justice, whose support has been invaluable throughout. I commend the Bill to the House.
Alex Cunningham
This has been an interesting Bill in process, although we still do not really see the need for many of the sweeping changes that the Government are proposing. I reiterate that the Minister has worked collaboratively with us, but sadly could not agree the changes that we proposed, which would have vastly improved this largely unnecessary Bill. I am grateful to my hon. Friend the Member for Hammersmith (Andy Slaughter) for partnering me through the Bill, and my hon. Friends the Members for Lewisham East (Janet Daby), for Liverpool, Wavertree (Paula Barker) and for Luton North (Sarah Owen) for helping to hold the Government to account. Thanks, too, to all the others who were involved in the process.
Let me be clear: there is simply no need to change the judicial review process. The Ministry of Justice is trying to fix something that is not broken. The Government should instead be spending their time tackling the record backlog and protecting victims of serious crime. The Government’s changes to judicial review will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without any redress.
The proposed reforms go beyond what was recommended by the expert panel set up to advise us, with no evidence to back up this overreach. The proposals are also based on figures that the Government have accepted were completely inaccurate. With the Government’s review of the Human Rights Act on the horizon, this is only the latest proposal to make it harder for ordinary members of the public to hold public institutions to account.
It is always useful to have a current example to illustrate what the impact of the Government’s draft legislation is likely to be. This afternoon—I hope the Minister is aware of this—there was a judicial review result, after disabled people challenged the Work and Pensions Secretary for failing to properly consult on the national disability strategy. The Government lost—yet again, another judgment lost. Does the Minister wish to intervene on me and tell me whether that particular challenge, and correction of an injustice, would have been possible if the provisions in the Bill had been in play today? Clearly, the Minister does not want to intervene.
We had high hopes for the coroner aspects of the Bill, but sadly it does not address the existing problems with the coroner service. Even more sadly, the Government have missed the opportunity to introduce automatic support for bereaved families at inquests where the state is represented. That is not justice; it is justice denied. On Report, I talked about the Government’s drive to apply more and more processes originally intended for adults, to children and young people. They set a precedent in the Police, Crime, Sentencing and Courts Bill, failing time and again to safeguard one of our most vulnerable groups.
More generally, I cannot for the life of me understand why the Government are fighting shy of protecting vulnerable people from the provisions of the Bill. The Government have refused to instigate health checks and other measures to ensure that, when people do engage with online justice, they know exactly what they are doing and the potential consequences. Again, that is not justice.
We did not want to stand in the way of improving our courts system—we know it needs massive improvement—but overall, this is a bad Bill and we shall vote against it.
Sir Robert Neill
I have great respect for the hon. Member for Stockton North (Alex Cunningham), but I am afraid I have to disagree with his characterisation of the Bill. It makes modest reforms, which seem sensible. Although I accept that the changes to judicial review are not uncontroversial, they are not a wholesale attack. I would not support them if they were. It is important to recognise that judicial review is fundamental. We need to get that on the record. It is an absolutely necessary part of the checks and balances. It can be refined, but it must never be undermined in principle. I do not believe that the Bill does that.
It is important that we properly fund the system that enables the courts to deal with judicial reviews and other matters. In fairness, there is a missed opportunity. I agree with the shadow Minister about funding for families of bereaved persons at inquests. The Justice Committee’s report advocated that and I hope that the Government will not give up on it, but revisit it because there is an equality of arms argument here. That is not a reason to vote against the Bill, but I think that the Government have missed a trick and I hope they will reconsider that.
The changes to the criminal justice system are worthwhile in themselves, but it is important that the Government did not go greatly beyond the report by Lord Faulks, whom we should congratulate again. I hope the Government will adopt the same approach to the review by Sir Peter Gross. Sometimes less is more.
Anne McLaughlin
I reiterate that we vehemently oppose much of the Bill. Nothing that has been said today or during the Bill’s passage has done anything to allay my fears or those of my party.
I thank the people who were involved in the proceedings because a lot of hard work went on. I thank hon. Friends in my party who spoke and my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley) who sat on the Bill Committee with me. Despite my ticking-off earlier, I thoroughly enjoyed working with Labour colleagues on the Committee. The Clerks did a fantastic job. The Clerks in the Public Bill Office could not be more helpful in walking and talking us through each of the different stages. It does not matter how many times we do it—maybe it does matter, but at my stage, it is important that there is someone there to guide us, and I thank the Clerks. I thank my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for all his guidance and advice, the researchers from the SNP team, Aaron Lukas and Matt Hamill, and my own researcher, Michael Bannister, who I relied on heavily to get through much of this. I mean “get through” in terms of what we were talking about, not just getting through mentally, although he helped with that as well.
It is not over. We just need to look back to last week and what happened in the House of Lords. I never thought I would hear myself saying this, but come on the Lords and let us see what they will do with the Bill. [Laughter.] Maybe my friends on the Labour Benches will not be laughing at my next point, but there is another option for Scotland.
Scotland will soon be given the opportunity to take the option of saying, “If you’re going to disrespect the Scottish legal system, the Scottish Government and the people of Scotland, on you go, but we will take our own path and choose independence.” I do not expect many “Hear, hear”s from my Labour friends there, but Scotland has another way and we will choose that path. Of that I have no doubt.
Today I gave the Government the opportunity at least to pretend that they had a bit of respect for Scotland. They did not take it and they have just given us more grist to the mill. That is about the only thing I can thank them for.
Again, I thank everybody for the experience and we will see where the Bill goes from here.
Marco Longhi
Tributes should be paid to the judges and legal professionals who have kept our courts operational during the pandemic to the best of their ability, using technology to do so, much as we have during the last two years. It must be our priority to break through the backlog in the criminal courts, partly caused by the pandemic. Just yesterday, I received details of an awful assault in 2019 in my constituency that will be heard in court only in 2023. That delay prevents victims from receiving justice in a timely manner, does not allow closure and can delay access to the Criminal Injuries Compensation Authority.
The Bill Committee, of which I was a member, heard evidence from specialist witnesses that implementing the Bill would save time and make our courts more efficient and effective. If I have learned anything during the pandemic, however, it has only entrenched my belief that the Opposition seek to hold us back: they voted against the Bill, they have just said that they will do so again, and they claim that there is no need for reform of judicial review. As with everything they do, there is dithering and delay. Our justice system and our constituents would be far worse off if they were in charge.
There is no area of the law that allows individuals, families, local government, business and so on to have more than two bites of the cherry in court—with one exception, namely illegal immigration appeals. That is another reason why the Opposition disagree with the Bill: because they are quite happy for the country to continue being a magnet for illegal immigration. When challenged in Committee, not once did an Opposition Member explain why illegal immigration should benefit from a third bite.
The Bill includes provision to ease the backlog in criminal courts and introduces measures to reduce the strain on magistrates courts. It also introduces a new online common platform, which will allow those who so wish to conduct all pre-trial proceedings online. Just as our parliamentary activities have benefited from being supplemented by virtual alternatives—I emphasise that they have been supplemented, not replaced—so can our legal sector benefit.
Nick Fletcher (Don Valley) (Con)
It is a pleasure to speak in this debate. I will speak only briefly, but it is so important that I do. I was elected on the Government’s promise to take back control. With this Bill and the Nationality and Borders Bill, I think we are moving in the right direction to make sure that that happens.
I want to speak about two points. I had a third point to make about magistrates, but my hon. Friend the Member for Warrington South (Andy Carter) has already spoken excellently about the issue.
Nick Fletcher
And at length, yes.
My first point is about allowing adult defendants to plead guilty to, and accept a pre-determined penalty for, minor offences online. Over the past two years, an increasing number of services, from schools to banking, have moved primarily online, at least temporarily. Although some people have found the online experience frustrating at times, and although in most cases I believe that in-person services should resume, in this instance I support going online.
My main point is about Cart JR. It is a question of court resources, but it also relates to an issue about which my constituents frequently contact me: immigration. Most judicial reviews against the upper tribunal relate to immigration cases. I understand that some cases are quite complex, but others appear to be no more than an abuse of the judicial process through endless, meritless appeals. As the Justice Secretary has noted in previous debates on the Bill, the success rate is hardly above 3%—an appalling statistic.
It is difficult to defend the UK’s immigration system to my constituents as fair and effective when they see in the news that hundreds of people arrive via the channel every week, yet the processes that we have in place seem to allow anyone to stay, regardless of how well-founded any claim is. The message that they are getting is that it does not matter whether someone is a genuine refugee: as long as they are prepared for a protracted legal battle, with legal aid at the taxpayer’s expense, they can stay for years, if not indefinitely. As I know from my casework, that does not incline my constituents to see all asylum applicants as potential refugees; on the contrary, it leads them to see all asylum applicants as willing to abuse the legal system. That perception may not be well founded, but it is understandable.
I am sure that such behaviour can be justified, but when the entire judicial system is under unprecedented pressure after nearly two years of the pandemic, it is especially ridiculous. We need every hour of the judiciary’s time that we have. I therefore commend the Bill and will happily support it.
Question put, That the Bill be now read the Third time.
Judicial Review and Courts Bill
Wednesday 26th January 2022
(2 years, 10 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 25 January 2022 - large print - (25 Jan 2022)
Judicial Review and Courts Bill
Monday 7th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 25 January 2022 - large print - (25 Jan 2022)
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the Judicial Review and Courts Bill comprises important measures dealing with both areas. I shall start with judicial review, but before getting to the detail of what is in the Bill, and especially for those few non-lawyers who have ventured into this legal bearpit, let me say a few words about what judicial review is and what it is not.
Judicial review is a means of holding those in public office, or those using public powers, to account. It is there to ensure that those who exercise public office or public powers had legal power to do what they did, and that they exercised such power in the manner and for the purpose the power was conferred.
The clue is in the title: judicial review. It is a judicial function that is exercised by judges; but it is a review mechanism that assesses the lawfulness of the decision-making process, not the merits of any decision that a public authority has taken. It is not for the courts to review—or, to put it more tendentiously, second-guess—the economic or social merits of government policy.
That is for good reason. Ministers are politically answerable to Parliament and, ultimately, to the people. Judges are politically answerable to no one, and that is how it should be. If people do not like a Government, they can vote them out. But they cannot vote the judges out—or indeed vote them in—and, again, that is how it should be. If the decision-maker had legal power to act as it did and acted in accordance with the law and in a procedurally proper manner, the fact that the judge might think the decision was wrong is—or should be—neither here nor there.
I have heard it said in some of the commentary on the Bill that it is somehow inappropriate for the Government and Parliament to intervene in the field of judicial review. That is a contention I cannot accept, for two reasons. First, as a matter of basic principle there cannot be any field of law in which it is wrong for Parliament to tread. Parliamentary sovereignty, like judicial review, means what it says on the tin. Secondly, and relatedly, Parliament is the proper forum in which the social and economic aspects of government policy are to be scrutinised.
So Parliament has a role—indeed, I would say, a duty—to intervene when the law takes a wrong turn or when it is not operating as effectively as it might. It was for this reason that the Government committed in their 2019 manifesto to look at the way in which judicial review is operating. It is the reason why we established the Independent Review of Administrative Law, with an eminent panel chaired by the noble Lord, Lord Faulks, in 2020, and why the measures in this Bill are before the House today. The excellent work of the noble Lord and his eminent panel is the bedrock of Part 1 and the sensible and practical reforms that the House will consider.
Let me now turn to the detail of some of the measures. Clause 1 addresses concerns about the lack of remedial flexibility currently available to the courts, which was identified as an issue by the independent review. At present, when a decision is quashed—that is, struck down—the effect of that quashing is typically immediate and retrospective. It operates ab initio and deprives the decision of ever having had legal effect. This means that a quashing order can be a blunt instrument which is too often applied to nuanced problems.
Clause 1 provides courts with greater flexibility, allowing them to deal more practically with the ramifications of quashing while delivering justice to claimants. That is achieved by allowing courts to suspend the effect of a quashing order or to limit or remove its retrospective effect. Suspending a quashing order means that courts can, when appropriate, allow a decision-maker to make a new decision before the unlawful act is quashed, or put in place transitional arrangements. Making a quashing order prospective-only enables the court to consider the interests of those who have relied on a decision which is being struck down and prevent a regulatory vacuum arising when secondary legislation is quashed. Individuals or families may in good faith have taken actions that they thought were lawful, and, without the ability to make a quashing order prospective-only, would have acted on the basis of a regulation which would be ruled never to have legally existed.
An example of when a suspended quashing order may have been of great benefit is the case Ahmed v Her Majesty’s Treasury. I refer to this decision with respect to the noble and learned Lords who sat on the case, and I am conscious that there was not unanimity of view among the Bench on this issue. In Ahmed, the court ruled that orders freezing suspected al-Qaeda terrorist assets were ultra vires, requiring Parliament to rush through emergency legislation or risk suspected terrorists being able to access their funds. Had the court considered that it could, on the facts of the case, suspend the effect of the quashing order, it could have allowed the Government better to protect British citizens and Parliament would have had the time to carry out proper scrutiny of the replacement legislation.
An example of where prospective-only remedies would be beneficial is the British Academy of Songwriters, Composers and Authors’ challenge to the private copying exemption in copyright law. This exemption allowed individuals to copy works they had purchased for their private use. For the assistance of the House, I will give a more familiar, if perhaps not technologically bang-up-to-date, example: making a mix tape or copying the contents of a CD on to a computer. When the exemption was struck down, a prospective-only remedy would have protected actions individuals had previously taken relying on the private copying exemption. Although, in that case, the court was able to take other action to protect the historic actions of individuals, it was unable to rule that the regulations themselves were previously lawful.
I want to make it absolutely clear that the decision whether to use these remedies in any particular case will ultimately be for the court. The Government acknowledge that the new remedies may not always be appropriate and that in those circumstances, the court will be under no obligation to use them, either because they would not offer adequate redress or for some other good reason.
The important point is that we are putting two new tools into the judicial toolbox. We are doing so because there are circumstances where these new remedies will allow the court to provide a remedy that better serves the interests of justice and promotes good administration. Clause 1 includes a list of factors that courts must consider when determining the appropriate remedy. They are intended to provide consistency in the decision-making process.
Clause 2 implements another recommendation of the independent review: it ousts the supervisory jurisdiction of the High Court and Court of Session over the Upper Tribunal under certain circumstances. This overturns a Supreme Court judgment in 2011 that established what is now commonly known as a Cart judicial review, or an Eba judicial review in Scotland.
Let me set out the relevant background. Assume a claimant has been unsuccessful at the First-tier Tribunal and wants to appeal to the Upper Tribunal. The claimant would need permission from either the First-tier Tribunal or the Upper Tribunal. Assume that the claimant has been refused permission to appeal that decision by the First-tier Tribunal and has also been refused permission to appeal by the Upper Tribunal. A Cart judicial review is the claimant asking the High Court, or the Court of Session in Scotland, to review the Upper Tribunal’s refusal to allow the claimant permission to appeal.
If the House is still with me, it will appreciate that the first objection to this form of judicial review is that it involves three different courts deciding on a permission to appeal application. That is striking, especially when the Upper Tribunal is a specialist senior court broadly equivalent to the High Court. Indeed, many of those sitting in the Upper Tribunal are themselves High Court judges. The words of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in the original Cart judgment are most relevant:
“The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”
Secondly, even in cases where the High Court finds in favour of the applicant and grants judicial review, it does not necessarily mean that the underlying appeal will be successful. Although Cart judicial reviews occur on a range of issues, the majority concern immigration cases. Only around 3.4% of the underlying appeals are successful, compared to a general success rate of 30% to 50% for other judicial review cases.
The ousting of supervisory court jurisdiction contained in Clause 2 is clear in its intent and narrow in scope. It still allows for some oversight by the supervisory court in the very unlikely event the Upper Tribunal acts in bad faith or commits a fundamental breach of the principles of natural justice. In this regard, I commend the work of Policy Exchange’s Judicial Power Project, which has highlighted the problems associated with the Cart judgment for a number of years and produced several illuminating papers more broadly in the area of judicial review. Taken together, those two clauses deliver on the Government’s manifesto commitment in a sensible and measured way.
I will take a few moments to outline some of the other provisions in the Bill dealing with courts and tribunals against the background of the Covid pandemic.
In the criminal courts, the Bill introduces new measures to modernise court processes and improve efficiency by updating procedures and avoiding unnecessary hearings. Clause 3 will enable the swifter resolution of specified low-level offences, such as travelling on a train without a ticket, by giving adult defendants who intend to plead guilty the option of entering their plea and accepting a conviction and pre-determined penalty entirely online. But there are safeguards: there is a cooling-off period and the courts will have the power to set aside any conviction that appears unjust.
Defendants prosecuted for either-way cases will always be given a specified first hearing date at a magistrates’ court, but Clause 6 enables defendants to have the additional option to indicate a plea and proceed with the trial allocation procedure online. They can do that only with the support of a legal representative. Any online indication will become binding only when they appear at a subsequent court hearing to confirm it.
Clause 9 gives magistrates’ courts powers to proceed with a trial allocation decision in the absence of a defendant who fails to appear without good reason and where the magistrates consider it in the interests of justice to do so. Again, there are special provisions for children and to make sure that adult defendants who do not understand what has been going on have an opportunity later in the process to elect for jury trial.
Clause 11 helps to speed up court recovery by enabling the Crown Court to return more cases to the magistrates’ court where appropriate. That is estimated to save 400 Crown Court sitting days a year.
We have made changes to magistrates’ court sentencing powers. We are extending the sentencing powers from a maximum of six months’ imprisonment to 12 months for a single triable either-way offence. We will do that by commencing existing provisions in the Sentencing Act 2020 and the Criminal Justice Act 2003.
We have a number of measures that will streamline and simplify coroners’ court procedures, which will speed up the inquest process for bereaved families and reduce unnecessary distress. The coroner measures in the Bill have been designed to support the Chief Coroner and coroners as they implement their post-pandemic recovery plans and address the backlog of inquest cases which have accumulated due to the pandemic in many coroner areas.
Moving to employment tribunals, the Bill will introduce measures to transfer rule-making powers for the employment tribunals and Employment Appeal Tribunal to the Tribunal Procedure Committee. Transferring these powers to an independent judge-led committee will provide a swift and efficient rule-making process for these tribunals and deliver greater alignment within the unified tribunal system.
We are also setting up an online procedure rule committee, which will create rules for online procedures in the civil and family courts and in tribunals. That will ensure a consistency of online rules across the jurisdictions. However, that will not mean that users cannot engage with the court in more traditional ways. Although digital services will undoubtedly become the default, we understand that not everyone will choose to participate in a hearing by electronic means or will be able to use digital services to pursue their legal rights. The measures in the Bill will ensure that paper forms will remain available for citizens participating in proceedings. An offline option will always be available for those who need it.
Finally, the Bill will enable the development of a new, purpose-built combined courthouse in the City of London. Not only will the new courthouse provide 10 additional courtrooms but court users will also benefit by having access to more modern facilities.
In summary, the Bill, which is short but focused and wide-ranging, will enable sensible and practical reforms to judicial review. It will streamline and improve processes across the Courts & Tribunals Service. I look forward to discussing the Bill during this debate and henceforth, and indeed to continuing discussions I have already had with many Members of the House. For those essential reasons, I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by welcoming back to this House my noble friend Lord Hacking. He last spoke in this House on the Contracts (Rights of Third Parties) Bill. I thought I might read out his final paragraph:
“Finally, some noble Lords have noticed that I am sporting an enormous black eye. As no one appears to have accepted my domestic explanation for it, and as a number of theories have been developed among noble Lords to whom I have spoken, perhaps I may put on record that I have not been whopped by an angry hereditary Peer who failed in the ballot! On the contrary, I believe that all hereditary Peers are seeking to leave this House with great dignity, and I am sorry that my own appearance is a little undignified.”—[Official Report, 10/11/1999; col. 1363.]
I welcome my noble friend’s return to this House.
Although the Labour Party welcomes elements of this Bill, it does not support the judicial review measures proposed in it. We would support removing them entirely. We believe that the Ministry of Justice is trying to fix something that is not broken. The Government should be spending their time tackling the record court backlog, protecting victims of serious crime and strengthening community-based sentences.
The Government’s reforms go beyond what was recommended by their own expert panel, with no evidence to back up this overreach. The Independent Review of Administrative Law, chaired by the noble Lord, Lord Faulks, did not recommend prospective-only remedies, a presumption for suspended quashing orders, imposing on the courts a list of factors to determine their use, or ouster clauses.
Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. As a result, courts would have less power to provide redress or to compensate those affected by past uses of the unlawful decision. On the face of it, that might seem quite a small change to judicial review, but we believe that the effects could be profound and chilling.
Numerous organisations, such as the Public Law Project, Friends of the Earth and the Law Society, are concerned that the statutory presumption in Clause 1 seeks to remove swathes of government decision-making from challenge via judicial review, and to limit the effectiveness of remedies granted to those challenges that are successful. The Government’s own consultation paper conceded that a prospective-only quashing order would
“impose injustice and unfairness on those who have reasonably relied on its validity in the past.”
I shall also quote some points raised by the Public Law Project, which has said that the statutory presumption would, first,
“place victims of unlawful actions in an unfair position; remedies which are prospective only may leave individuals without redress at all.”
Secondly, it said, these remedies would
“insulate Government from scrutiny and make it more difficult for decision makers to be held to account.”
Thirdly, they would
“make it more—rather than less—likely that judges will be forced to enter the political realm.”
Fourthly, they would remove the current simplicity of quashing orders and make it more difficult, and costly, to bring a judicial review claim. Fifthly, they would shift the scales of justice too far in the direction of the Executive at the expense of the individual.
Clause 2 of the Bill would abolish Cart—or, in Scotland, Eba—judicial reviews. These are most often used in serious asylum and human rights cases. We believe that Cart is a vital safeguard against incorrect decisions made by the Upper Tribunal. There is already a high threshold for bringing them and the proposed saving is tiny compared to the human cost of abolishing them. The Labour Party is also concerned that the Government will use abolishing Cart judicial reviews as a precedent to abolish other types of judicial review in the future.
At the consultation stage of the review of administrative law, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review had been used to put right an incorrect decision made by the Upper Tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals would face persecution or their lives would be put at risk. The same applies to other kinds of cases heard in the tribunal system, such as cases about access to benefits for disabled children. The Government have recognised in their impact assessment that the majority of those affected by this change will be those with protected characteristics.
Part 2 of the Bill consists of five chapters, which contain provisions relating to criminal procedure, online procedure, employment tribunals, coroners and other court provisions. Many of the measures contained here were previously in the 2017 Prison and Courts Bill, which fell at the Dissolution of Parliament. In general terms, we are in favour of measures that make our courts more accessible, fairer and, if appropriate, more cost-effective. I remind the House that I sit as a magistrate in London and, over the past two years, I have done my fair share of remote hearings in the adult jurisdiction, including single justice procedures, and in the Family Division. I have also done youth hearings where we have had to make difficult decisions about the appropriateness—whether for the victim or the defendant—of proceeding with a remote hearing. So, I do understand the practicalities and limitations of working remotely.
The amendments that we will put forward for this part of the Bill will focus on improving safeguards for young people and vulnerable people, and on preventing people inappropriately pleading guilty online without properly understanding the implications of their plea. It is a real fear that, to make life simple, people will just plead guilty to get the issue out of the way. We also support publicly funded legal representation for bereaved people at coroner’s inquests and we will move amendments to this effect at later stages of the Bill. I also welcome the increased sentencing powers for magistrates’ courts for either-way offences, from six months to 12 months for a single charge. I cannot help noting that, if this measure had been introduced at the beginning of the pandemic, it might have partially ameliorated the current Crown Court backlog.
In conclusion, the Government’s proposed changes to judicial review would deter members of the public from bringing claims against public bodies and leave victims of unlawful actions without legal redress. Governments may, at times, find judicial review to be inconvenient, but that is no justification for attempting to avoid judicial scrutiny. As the Opposition, we will oppose Part 1 of the Bill but will work to improve Part 2. I thank the Minister for introducing this legislation.
Lord Thomas of Gresford (LD)
My Lords, I too welcome the noble Lord, Lord Hacking, back to his place. We worked together in the latter part of John Major’s Government; subsequently, when he occupied the Benches opposite, I am sure that we would have been on the same side on the Human Rights Bill, devolution and matters of that sort. It is very pleasant to see him back.
My first encounter with the prerogative writs was an application for leave to move for certiorari—what today is called a “quashing order”, to obtain the reversal of a decision to refuse a war pension to my client. He was suffering from what today would be easily recognised as PTSD, as a result of experiences he suffered in Montgomery’s push from El Alamein to Tunis. The Government were represented by the noble and learned Lord, Lord Woolf, who I am very pleased to see is in his place. Modesty forbids me from saying who won the case, but I would have been incensed if my client had been denied arrears of his war pension to the date of the decision—that would be the effect of the prospective quashing order proposed in this Bill—or denied it to some indeterminate point in the future to give the Government time to correct the defect in the decision, which I had established was unlawful; that would be the effect of the proposed suspended order. If the court had exercised a power to make a suspended and prospective order combined, my client would have won the case but received nothing.
Ubi ius, ibi remedium: where the law has established a right, there should be a corresponding remedy for its breach. The right to a remedy is a fundamental right, historically recognised in all legal systems. It would also have been unthinkable if those not parties to my case, but who benefited from the court’s declaration that the Government had acted unlawfully, had been denied their rights. Of course, we abolished the word “certiorari” some time ago—“too much Latin”, as my grandson, in his first year studying law in Cardiff, would say. It was out of date, too redolent of 800 years of history when, under the British Constitution, the High Court could insist that a Government, public body or inferior court had acted within the law. We called it the rule of law. Today, the rule of law is mocked, privately and publicly, by our own Prime Minister. But what under this Bill would be the point of any person taking proceedings against any public body if, when he had won the game at full time, that body were given extra time until it managed to score the winning try?
Another glaring defect is that the Bill markedly tilts the judge’s hitherto untrammelled discretion in determining the appropriate remedy in the Government or the body’s favour, even though the judge has found that it has acted unlawfully. Under new subsection (9), the court must make a prospective or suspended order or both,
“unless it sees good reason not to do so”.
I ask the Minister to explain and illustrate what he envisages is a “good reason”. New subsection (8) sets out a list of factors that the judge must consider in making an order. Is it intended that one of those factors would suffice to be a good reason?
Let me move on to Clause 2. The Minister has explained the Cart case. The Government have decided to prevent an appeal against refusal of leave to appeal from the first tier to the Upper Tribunal and endeavour to oust the supervisory jurisdiction of the High Court. However, it is not just that. The Government seek in the Bill to forge a template for an ouster clause—they freely admit it—which they hope will in the future be used in other Bills.
Let us look at the terms of that. Under the title of “Finality of decisions”, new subsections (2) and (3) declare that
“The decision is final, and not liable to be questioned or set aside in any other court … In particular … the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision … the supervisory jurisdiction”
of the Hight Court
“does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision”.
It is stamp, stamp, stamp. It is like someone is trying to put out a fire with a broom on the hillside.
I move on to Part 2. On the issue of online court proceedings, I am certainly in favour in principle, but there are concerns to be explored in Committee over the rights of those who have no facility for the use of, or access to, online technology. Similarly, I am concerned, as was the noble Lord, Lord Ponsonby, that young people will not have the same access to interventions available in the criminal justice system to match the problems which have caused them to offend in the first place. As for inquests under Chapter 4, it is essential that we do not miss this opportunity to enshrine the principle of equality of arms into coroners’ proceedings. I have appeared in a number of inquests, sometimes funded by insurance companies, where there was a possibility of the insured being sued for negligence. On other occasions, I have appeared pro bono for relatives of the deceased. It is unconscionable that police forces, hospitals and the like should be fully funded by the state for representation by counsel, or perhaps by solicitors, while grieving relatives with no experience of any sort of court should be left to fend for themselves.
Finally, I shall want to explore the rationale in the 21st century for Rule 27 of the Coroners (Inquests) Rules 2013. This might sound a little exotic, but that rule reads in this way:
“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”
I have always considered it an anomaly that family representatives may not make submissions, either in person or by their lawyer, to a coroner or a coroner’s jury as to what their verdict should be.
Time and again, this Government have shown a tendency to try to rig the system in their own favour. In areas like mandatory and minimum sentences, and in this Bill, concerned with determining the lawfulness of government action and decision-making, they muscle in to usurp the discretion of that other essential limb of a liberal democracy, the judiciary. It refuses to let judges do their job. It must be resisted.
Lord Anderson of Ipswich (CB)
My Lords, there is quite a bit to welcome, and quite a bit to debate, in the Bill. I am going to speak at this stage only on Clause 1. A court in which I used to appear regularly—the European Court of Justice—has, for many years, had the habit of occasionally granting each of the remedies envisaged by Clause 1: what have been called the suspended quashing order and the prospective-only quashing order. I understand that the same is true of courts in some other countries, both in Europe and further afield. Perhaps because I have become used to these remedies in practice, I believe that each has its place, if not at the top of the judicial toolbox, then certainly somewhere within it.
I will give a couple of illustrations to add to those provided earlier by the Minister, starting with the suspended quashing order. In the well-known case of Kadi v Council, the sanctions imposed without due process on Mr Kadi—suspected at the time, although no longer, of having funded al-Qaeda—were quashed in 2008 with effect from three months in the future. This gave the Council a strictly time-limited chance to correct its error if it had the wherewithal to do so. As Mr Kadi’s advocate, I wondered whether the court would have had the courage to issue a quashing order at all, given the possible security consequences, if the option of a suspension had not existed. The chosen remedy seemed an effective compromise.
Prospective-only rulings have their origins in the Defrenne case of 1976, in which the court declared the treaty principle of equal pay for equal work to have direct effect. Having taken into account many of the factors now set out in new subsection (8), the court declared its ruling to be prospective only, except for those who had already brought legal proceedings or made an equivalent claim. In the relatively few cases that have followed of prospective-only quashing orders, a similar exception has been applied. Perhaps that exception will find favour with our courts too: it would seem to qualify as a condition within new Section 29A(2) of the Senior Courts Act 1981 and as a factor to which the court must have regard under new subsection (8)(c).
Not so welcome, at least to me, is the presumption in new subsection (9), particularly as glossed by new subsection (10), with its vague reference to action “proposed to be taken”. The institutions of the EU do not seek to dictate to its independent court the circumstances in which these remedies should be used, and I am not so far persuaded that this attempt at long-range micromanagement is appropriate here either.
The saving grace of the presumption, if it has one, is its limited scope. No presumption applies when, to suspend a quashing order, or to make it prospective only, would, in the opinion of the court, not offer “adequate redress”. That phrase will, no doubt, be much debated. I take it to include the concept of an effective remedy, not only for the claimant in the case but for other existing or potential claimants. Yet redress is a broader concept than that of remedy: Mr Justice Sedley, as he then was, said in the Kirkstall Valley case that
“Public law is concerned not only with the vindication of positive rights, but with the redress of public wrongs wherever the court’s attention is called to them by a person or body with sufficient interest.”
Where the redress of public wrongs requires a decision to be quashed, in other words, the courts should not be hamstrung by any presumption in favour of the specialist remedies provided for by Clause 1.
Current Supreme Court guidance does not encourage the judges, when construing Acts of Parliament, to have regard to our debates. None the less, I should be glad to know if the Minister agrees with what I said about the scope of the presumption. If I am right, new subsections (9) and (10) are a good deal less toxic than Section 38(8) to (10) of the Environment Act 2021, which despite the best efforts of your Lordships inhibits the High Court on environmental review from granting any useful remedy at all. However, we should have better reasons for waving through new subsections (9) and (10) than their only limited toxicity.
The Minister, James Cartlidge, said in Committee in another place that
“removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively”.—[Official Report, Commons, Judicial Review and Courts Bill Committee, 4/11/21; col. 127.]
Who knows? Perhaps, after proper debate, we will need to put that proposition to the test.
Lord Faulks (Non-Afl)
My Lords, as the House has heard, I was chair of the Independent Review of Administrative Law, a panel made up of a number of academics and practitioners. We spent six months quite closely studying the law and endeavouring to assist the Government with some recommendations. It is difficult to encapsulate that in the five minutes that I have been permitted. Perhaps I can simply say that Clause 1 and Clause 2 broadly reflect what we recommend, and so I support the Bill. Clause 1 is intended to give greater flexibility to the courts and to smooth over the rough edges that quashing orders can cause. However, I look forward to the debates as to whether any improvements can be made in the drafting.
Clause 2 is in effect a reversal of Cart, as the House has heard. For some time, the wisdom of that decision has been questioned by the authors of the Policy Exchange Judicial Power Project, Professor Ekins and Sir Stephen Laws, in their submissions to our panel. However, the panel also considered a lecture given by Lord Carnwath, a former Supreme Court judge, in December 2020. He quoted an experienced administrative court judge who said:
“I would say that for every 10 days that I sit in the Administrative Court one day is occupied with dealing with spurious Cart applications. The rate of grant of permission … is minuscule”.
Lord Carnwath pointed out that a Cart JR
“represents a third bite of the cherry … the litigant”
previously would have been
“refused permission to appeal by the First-tier and the Upper Tribunal.”
He said:
“Having been closely involved in the preparation of the relevant legislation, I can confirm that our intention was that the Upper Tribunal should, within in its specialist sphere … be immune from review by the High Court.”
The statistics came second when it came to our recommendation. There was some difficulty in establishing precisely what the success rate was; we endeavoured to get all the statistics we could from all sources that were available. However, less controversial—see page 67 of our report—is the number of applications for a Cart JR. At a five-year average of 779 per annum, it was the most popular judicial review in all areas of the law. If you read the Supreme Court judgment in Cart, it is clear that any application was expected to be most unusual. Some 779 per annum jurisdictional errors by a specialist court—I respectfully submit that that the matter speaks for itself.
I will say something briefly about JR in general. The IRAL was a fulfilment of a manifesto commitment. I was a bit surprised to be accused by a distinguished Peer from the Labour Party, not currently involved in this debate, of being a party to constitutional vandalism by agreeing to be part of this panel—and that was before our first meeting. We were genuinely independent, with not obviously similar initial views on the issues. However, we reached the conclusion that JR was a fundamental part of the rule of law, and we had no desire to recommend radical reform. It is of course a vital part of the checks and balances that exist in our constitution. However, that does not mean that Parliament, after careful consideration, cannot reverse a court’s decision. Judges get things wrong; our appeal system is based on that principle. Our judges deserve considerable respect but, as with Parliament, from time to time, experience indicates that a different course is appropriate. No senior judge who made submissions to us took any issue with this. There was certainly no suggestion of constitutional vandalism.
Possible amendments to the Bill have been advanced by Professor Ekins in a remarkable paper in which he identifies a number of cases which arguably were decided wrongly. Others may want to develop these amendments—I do not know. I simply identify the case of Adams as being very questionable. It was a decision of the Supreme Court which rode roughshod over the Carltona principle, which of itself will cause considerable practical problems for government. That may be well worth further consideration, as would others.
I conclude with one observation on a different part of the Bill: the online courts Bill. I welcome the development, which has been quite some time in coming. The benefits of online proceedings were particularly apparent during Covid. I am somewhat concerned about access to online procedure for the media—here I wear my hat as the chair of the Independent Press Standards Organisation. It is most important, the axiom being “Justice should be seen to be done”, that nothing done online is not capable of being seen and observed and commented on by the media, of course, and indeed by anybody else. Therefore, in our desire to make rules, I hope that the Government can reassure me and the House that there will be a proper provision for access to the media so this online justice will not in any way be secret justice.
Lord Garnier (Con)
My Lords, my public law experience as a member of the Bar is not as extensive as that of other noble and learned Lords or other noble Lords who are lawyers. However, alongside the noble Lord, Lord Pannick, who is in his place, I appeared in Miller 2, the prorogation case, which was decided unanimously against and which, it seems, encouraged the current Prime Minister, the defendant in that case, to demand that access to judicial review be severely curtailed. In any event, the Independent Review of Administrative Law, chaired by my noble friend Lord Faulks, followed not long after and published its report in March last year. It is a pleasure to follow him in this debate.
I suspect that my noble friend’s and his fellow panellists’ recommendations were not wholly to the Prime Minister’s liking as they did not go nearly far enough for him. However, I have lost no sleep whatever over that. It was a measured and thoughtful report that suggested some limited and specific changes to the law relating to judicial review. As the Prime Minister goes through a period of intense political Sturm und Drang, the report wisely states that while the reviewers understood the Government’s concern about recent court defeats, they considered that disappointment with the outcome of a case or cases was rarely sufficient reason to legislate more generally. The report is rational and evidence-based and, I am happy to acknowledge, Part 1 of the Bill is surprisingly restrained in its objectives as regards judicial review. If that is a consequence of anything done by the Minister he is to be congratulated, because at times like this a cool head and a steady hand are essential in government.
The change in the law set out in Clause 2 reversing the Cart decision, will, I hope, enable the tribunal system in immigration cases still to do justice without unfairness to applicants. I agree with what my noble friend Lord Faulks just said on Clause 2. Paragraph D16 on page 162 of the report notes that in 2019, the number of immigration judicial review cases was
“higher by nearly a factor of four to the number of immigration cases in 2000. Proportionately, immigration used to be about half of all judicial reviews … and it now makes up the vast majority of all judicial reviews (82%).”
Further relevant detail is set out in Appendix D of the report.
Despite what the noble Lord, Lord Anderson, said about his experience in the European Court, and what the Minister described, in that delightful way, as remedial flexibility, as well as his wider arguments, I am a little more sceptical about the proposal in Clause 1 which provides for prospective quashing orders. I accept that Clause 29A(9) of the new clause to be inserted into the Senior Courts Act 1981 gives the court some slight leeway not to make a prospective order and, in their response to the consultation, the Government said that prospective orders are likely to be rare. They may be, but we need to guard against the predicted and predictable unfairnesses that may come with prospective quashing orders. No doubt we will discuss this further in later debates on the Bill, as we will the other technical and less controversial provisions in Part 2.
That said, I welcome the proposal flowing from Clause 43 for a new combined courthouse on Fleet Street to deal with economic and financial crime cases. It will be a valuable addition to the court estate.
Baroness Whitaker (Lab)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Garnier. Indeed, I rise with great trepidation among such distinguished and learned speakers. I will make a brief contribution from a different perspective: that of a former civil servant whose advice was liable to judicial review, and that of a former member of the employment tribunal whose decision was similarly placed.
There are some useful reforms in the Bill, but in the time allowed I shall confine myself to those proposals which make me uneasy, where I hope amendments can be negotiated. My starting point, as we were taught in the Civil Service, is that judicial review is the way in which an ordinary individual—a citizen—can remove a state action that was illegally made. We had a very well-written booklet, The Judge Over Your Shoulder, which set out the procedures necessary for a legal and democratic government or administrative decision to be reached, and how the court would examine them in a review. Proper consultation was often a key factor. I should emphasise that it was reassuring to know that damaging mistakes could be rectified and that the courts could legitimately pay attention to how we did things, although naturally we tried to avoid this happening. However, officials work under pressure much of the time, and so do Ministers. It is to be expected that mistakes are made and that political purposes can override legitimacy. While national policy is about aggregates, justice is for individuals.
Clause 1 immediately raises questions: the incentives for suspended and prospective quashing orders would be a problem for the aggrieved citizen because, as I understand it, the alleged wrong could not be righted while it was actually happening. The range of powers of the court to decide would be more constrained, and it would have to take into account some arguably extra-legal factors like the convenience of administrators. What might have happened if the proposed reforms were in place over the outfall of raw sewage into the rivers? I wonder if our ratification of the Aarhus convention is now in question.
Clause 2 also makes me uneasy. Removing one of the powers to appeal against a tribunal decision carries an obvious risk of injustice. There have been cases of abused tied domestic employees and deportation which succeeded under the current system, which would not have been allowed under the Bill.
I have one last question. When I was a magistrate, it was clear that many defendants were people who could not grasp the legal system we live in. That is not to say that they might not also have intended to do wrong, but among them were people who could not cope with the requirements of an orderly life and who were in several ways vulnerable. What arrangements will the Government make for people who cannot manage or have no access to the digital communication which would be obligatory under the Bill?
The Bill needs very careful scrutiny. Administrative law affects the public in a very direct way. We should be extremely careful about impairing the ability of communities and individuals to call the state to account, whether it is about protecting the environment, asylum, depriving people of benefit, or any condition the state imposes. I do not see the democratic or constitutional argument for fettering judges in the way the Bill proposes. We should allow their discretion to decide proportionate remedies. It is surely the birthright of citizens of a democracy for the rule of law to have enough force to maintain that democracy.
Lord Beith (LD)
My Lords, I think even the Government sometimes concede that judicial review is a vital protection for the citizen against the unlawful abuse of power by the Executive, other public authorities and, in some circumstances, by private sector organisations. It provides a powerful system of scrutiny of the fairness and integrity of the decision-making process, which the Executive ignore at their peril, as someone who has worked in the Civil Service will be aware—the noble Baroness clearly was.
The use of judicial review has increased significantly over the years, but so has the range of government activity which impacts on the citizen and therefore makes it necessary for it to be open to challenge. Most of the Bill, of course, is nothing to do with judicial review. After its first few pages, it is the reincarnated and revamped courts Bill, which fell at the 2017 election—it should have been introduced sooner to avoid that fate—plus a few very limited clauses about coroners which are a missed opportunity to address the inequality of arms which occurs in some very significant inquests to which my noble friend Lord Thomas of Gresford referred. It is not the full-frontal attack on judicial review that some in the Government hoped for. Instead, I would liken it to guerrilla tactics against judicial review.
We must go back to the publication of the review of administrative law by the noble Lord, Lord Faulks, to understand what is going on. The noble Lord and his expert committee carried out a thorough study and, based on the evidence, reached conclusions but they were not the conclusions that the Government intended it to reach—at least in part. Following publication of the report, I had a revealing letter from the then Lord Chancellor, Robert Buckland, in which he commended the group’s use of empirical evidence but added:
“However, I feel that the analysis in the report supports consideration of additional policy options to more fully address the issues they identified.”
That is pure Sir Humphrey, straight out of “Yes Minister”. A consultation followed, but my belief is that Robert Buckland’s approach—I not seeking to be critical of him because he had many qualities—became one of rejecting any general attack on judicial review and favouring instead the more selective inclusion of ouster clauses in some future Bills. There is a natural concern that even this unwelcome development might not be enough to satisfy the incoming Lord Chancellor once Sir Robert, as we know, was removed. Mr Raab has form on this issue. That is the context of the judicial review provision.
I have two particular concerns, echoing those of others, about the impact or potential impact of the Bill on the direction of policy on judicial review once the Bill is enacted. The first is the ouster clause tactic to which I referred, and it must be seen alongside the ouster clause in the Dissolution and Calling of Parliament Bill going through the House. The Ministry of Justice gave the game away in the press release which launched this Bill, saying:
“It is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
My Lords, you have been warned.
There is a debate to be had about whether the Cart provisions in the Bill are necessary or will prevent some meritorious challenges to areas of law. I think we must look at them very carefully in Committee. However, I am more seriously concerned at this deliberate creation of a precedent for similar ouster clauses in unspecified future legislation. In what fields? Is it going to become the framework for a standard clause like the commencement clauses, which come on the end of a Bill and which every Bill—or a significant number—is going to have?
My second serious concern is that a reasonable proposal that the court should have an option of suspended quashing orders has been distorted into little short of a direction to the court that prospective or suspended quashing orders should be the norm. In the words of subsection (9) of proposed new Section 29A to be inserted by Clause 1, the court must exercise its power to suspend the effect of its order unless it sees
“good reason not to do so.”
There is always a good reason to quash illegal action by the Executive. It is the basis on which people in the public service know that they need to get things right or risk their action being quashed or nullified.
There are sometimes practical and sensible reasons why the full remedy is best not used—for example, when it would leave other citizens without a valid licence or with their status changed without time to make alternative arrangements. However, the court can assess the balance of those arguments without a massive statutory presumption in favour of weakening the wider discipline to the public service that comes from potential exposure to judicial review.
There are notional but understood boundaries between the role of the courts and the role of the Executive. There are judgments that are for an accountable Executive to make, such as the allocation of resources or the making of treaties. Courts are aware of these boundaries and have articulated them in a range of cases. Sometimes the Executive would disagree and be discomforted, but that is no excuse for them to remove or shift the boundary that protects the citizen’s ability to rely on the court to make sure that the Government obey the rule of law. If we were not already concerned about the maintenance of the rule of law in government, recent events have reinforced that it cannot be taken for granted.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I do not and never did take the view expressed by some that the Government in their stated aim of rebalancing the relationship between the Executive and judiciary were intent on a power grab and on destroying the courts’ supervisory jurisdiction. The Faulks review was a model inquiry producing a model report. Frankly, I had little problem with Robert Buckland, the then Lord Chancellor’s response to it, even though I recognised that in certain respects it went rather further than the Faulks recommendations.
In short, I do not, for the most part share the concerns expressed by the noble Lord, Lord Ponsonby, on behalf of the Labour Party—rather, I support Part 1 of the Bill. It introduces in Clause 1 flexibility and greater discretion in the courts’ supervisory jurisdiction and, at last, will get rid of the troublesome doctrine that a flawed decision, if successfully impugned is null and void to be regarded therefore merely as “a purported decision”. That explains the use of that term, both in this clause and again in Clause 3 of the Dissolution Bill. In short, Clause 1 would give the quietus to what has been called the “metaphysic of nullity”—the constraining theory that any legal error makes a decision or instrument not merely voidable but void ab initio.
I make three brief points. First, there are those who object to the presumption, the word “must” in new subsection (9). The requirement for the court to suspend, or on the rare occasions it does so, make prospective only a quashing order, if that would on appropriate conditions give “adequate redress” unless there is “good reason not to do so”. Such good reason, I suggest in answer to the noble Lord, Lord Thomas, would exist if, for example, an order or instrument was made in bad faith, if the maker recognised that it could well be unlawful. Personally, I am agnostic about new subsection (9), but it seems no more objectionable than Section 8(3) of the Human Rights Act, which I will not read out. Anybody interested can look it up.
Secondly, by being encouraged to make suspended orders, it seems to me the courts would be the readier to find flaws in decisions impugned—this point was hinted at by the noble Lord, Lord Anderson—if in doing so they would then avoid the administrative chaos that can otherwise all too easily flow from annulling ab initio various decisions or instruments, regulations or by-laws.
Finally on Clause 1, as was pointed out in the Faulks report, in paragraph 3.64, the power to make suspended orders,
“would be especially useful in high-profile constitutional cases, where it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament in resolving disagreements”.
I will not read the rest. It is neither healthy nor helpful to have in some quarters potential concern about what is being called “judicial over-reach” or “supremacism”. Clause 1 would go some way to alleviate that.
Turning more briefly to Clause 2, I should mention that I was one of the seven justices in Cart, which is now being over-turned. One knows what we did. In my judgment, as quoted by the Minister on opening, I pointed out that the limitation of the review we were permitting in that case was to conserve judicial resources. Even that formula, however, proved altogether too wasteful of judicial resources. For that reason, it is now best to narrow it down still further to the formula to be found in Clause 2(4).
Of course, Clause 2 is an ouster clause, but not, I suggest, an intended model for future clauses wherever there is legislation. It admirably illustrates that such clauses can in various circumstances be both entirely justified and desirable and, secondly, that they can be limited in their effect, tailormade to the context, as I suggest is Clause 2 here and, in a radically different context, Clause 3 of the Dissolution Bill we come to on Wednesday.
In conclusion, I support Part 1 on the basis that each clause strengthens rather than weakens the judiciary: Clause 1 by increasing powers and discretion; Clause 2 by conserving resources.
Lord Howard of Lympne (Con)
My Lords, it is a pleasure to follow the noble and learned Lord, Lord Brown, with whom I crossed swords in the courts on a number of occasions many moons ago. I join others in welcoming the noble Lord, Lord Hacking, with whom I often debated in the Cambridge Union even longer ago.
I shall restrict my remarks to the first part of the Bill. I should perhaps give an advance warning that I shall, as is often my wont, strike a discordant note in your Lordships’ deliberations on these issues. I want to preface what I say by making one key distinction, which I am afraid puts me at odds with my fellow Petrean, the noble Lord, Lord Thomas of Gresford. Those of us who have reservations about the growth in judicial review in recent years are sometimes accused of attacking the rule of law. That criticism is entirely misconceived. I yield to no one in my respect for the rule of law, as I hope I demonstrated in my opposition to the Governments internal market Bill. The issue to which the growth of judicial review gives rise is not the rule of law but rather who makes the law. Who is to have the final say on the laws which govern us? Is it to be Parliament, the traditional repository of sovereignty, and, at least as far as the other place is concerned, democratically elected and so accountable to the people, or the judges of the Supreme Court, unelected, unaccountable and the product of a process which in many ways resembles a self-perpetuating oligarchy?
There can be no doubt that judicial review has increased beyond recognition in size and scope over the last 50 years. Both the report of the Review of Administrative Law and Professor Richard Ekins, in one of his many persuasive papers for Policy Exchange’s Judicial Power Project, quote from the introduction to De Smith on administrative law, the standard textbook, which says:
“Public authorities are set up to govern and administer, and if their every act or decision were to be reviewable on unrestricted grounds by an independent judicial body the business of administration could be brought to a standstill. The prospect of judicial relief cannot be held out to any person whose interests may be adversely affected by an administrative action”.
Those words may be regarded as a classic description of what judicial review used to be. But the last time they appeared in De Smith’s book was in 1973. Indeed, as early as 1980 its editor noted,
“a steady increase in the readiness of the courts to intervene”.
Since then, there has been in the words of words of the noble and learned Lords, Lord Neuberger and Lord Clarke, and the noble and learned Baroness, Lady Hale, an explosion of judicial review, and one that has taken place without any parliamentary authority. That this explosion has led the Supreme Court into conflict with Parliament cannot be in doubt. My noble friend the Minister and others have dealt with the Cart case and the Bill makes provision for its reversal. But the case of Privacy International is very similar. In that case it was the Investigatory Powers Tribunal, a specialist court set up to make decisions on sensitive issues relating to national security, which Parliament had sought to protect from judicial review. The Supreme Court set aside that protection and the case is particularly noteworthy for the speech of Lord Carnwath, with whom I once shared a set of chambers. Lord Carnwath said that, if an ouster clause is expressed so clearly as being incapable of being interpreted not to prevent judicial review, it would be open to the courts to decline to give effect to such legislation. A more direct or naked challenge to the principle of parliamentary sovereignty it is difficult to imagine.
Then, of course, we have the two Miller cases, in which the Supreme Court paid lip-service to the supremacy of Parliament and even claimed to be ensuring that Parliament had a say. But Parliament does not need the intervention of the courts to have a say. If the other place had wished to prevent the Prime Minister from exercising the prerogative to prorogue Parliament, it could have done so. If the other place had wished to insist on a vote on Article 50 before it was activated, it could have done so. Of course, the court, in its prorogation case, was only able to reach its decision by the most blatant distortion of the Bill of Rights, which provides that
“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
Prorogation is an event that takes place in your Lordships’ House and which Members of the other place are invited to witness. It is clearly a proceeding in Parliament. The judgment of the Supreme Court stated that the Bill did not apply because prorogation did not involve any decision of Parliament. I venture to suggest that the drafters of the Bill of Rights had as great a command of the English language as Lady Hale. If they had wanted their prohibition to apply only to those proceedings which involved a decision, they could and would have said so. There are many other cases in a similar vein which I do not have time to mention.
Why does all of this matter? It matters because accountability is the key to democracy. Members of the other place are accountable to the electorate. Judges are not. I stood for election to the other place on eight occasions—twice unsuccessfully, six times successfully. On each of the five occasions when I stood for re-election, I had to account to my constituents for the actions I had taken in the previous Parliament. The judges are accountable to no one.
So, given that the only decision the Bill seeks to reverse is the decision in Cart, I find it deeply disappointing. The noble Lord, Lord Pannick, with whom I rarely agree on these matters, described it as minimalist. He was spot on. The Minister, in the other place, said that the Bill was not necessarily the Government’s last word on these issues. I certainly hope that is the case, but I am not holding my breath.
Lord Trevethin and Oaksey (CB)
My Lords, it is a great pleasure to follow the noble Lord, and I agree with what he said about the glorious success of the noble Lord, Lord Pannick, assisted by the noble and learned Lord, Lord Garnier, in Miller 2, but I will not go into that now. I agree also with what the noble Lord, Lord Faulks, said about the very dubious Adams decision. If the Minister were to pick up the gauntlet in relation to that decision, he might find that quite a few of the legally qualified Members of the Chamber—who normally disagree with each other about such things—speak with one voice about the demerits of that decision.
I want to say a few words about—and solely about—Clause 2 and the reversal of the Supreme Court decision in Cart. The ouster clause in the Bill restores the position established by the decisions of the Divisional Court and the Court of Appeal in Cart. They were strong courts. The judgments were given respectively by the late Sir John Laws and Sir Stephen Sedley. They concluded that a refusal by the Upper Tribunal to grant permission to appeal was susceptible to JR, but only in two cases: first, on the ground that the Upper Tribunal had been guilty of what one may call “true”—or using the Court of Appeal’s terminology, “outright”—excess of jurisdiction, or, secondly, on the ground of some serious procedural irregularity—for instance, actual bias—which amounted to a fundamental denial of justice. The Bill, as drafted, reflects those two grounds quite properly. As Sir Stephen Sedley put it in the Court of Appeal: “Outright excess of jurisdiction”
or
“denial … of fundamental justice … represent the doing”
of something by the Upper Tribunal
“that Parliament cannot possibly have authorised it to do.”
What is “true” or “outright” excess of jurisdiction? Sir John Laws described it well in Cart: it denotes the case where the court—or tribunal, or executive decision-taker—
“travels into territory where it has no business.”
Such a case is different to the case where the court, tribunal or decision-taker has got it wrong, or is alleged to have got it wrong.
The Supreme Court in Cart overturned the decision of the lower courts. It observed that their approach led back to and, in a sense, reinstated, the distinction between “true” jurisdictional errors and other errors which had been “effectively abandoned” after the House of Lords’ decision in the Anisminic case in the late 60s. It was implicit in the Supreme Court’s judgment, I think, that this was considered a retrogressive and undesirable move.
However, as the Government said in their response to the report of the committee of the noble Lord, Lord Faulks, there are real distinctions between three different things: “true” excess of jurisdiction; serious procedural error or abuse; and all other errors, whether of law or fact. Paragraph 55 of the Government’s response to the committee report states that the ouster clause in this Bill may be used as an example to guide the development of effective legislation in the future. Some will regard that as ominous. I am not sure; that will depend upon the context in which any such attempt is made. It does seem to me—at least—that the Government are right to bring these distinctions that I have mentioned into sharp focus.
Anisminic is an example of judges interpreting words to mean something they clearly do not mean in order to achieve a desired outcome. The relevant statute provided that determinations made by the relevant tribunal should not be called into question in court. The House of Lords held that a determination based on error of law is not a real determination but a nullity and, therefore, was not within the statutory provision. Given that only arguably erroneous determinations are likely to be called into question in court, this may diplomatically be described as a very strained construction indeed. Sir Stephen Sedley, who is not opposed to judicial activism in this field, has described the reasoning as
“close to intellectual sleight of hand”
and “a masterpiece of equivocation”. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, used the term “troublesome doctrine” and the “metaphysic of nullity” when discussing related concepts.
In the recent Privacy International decision, both the judges who spoke for the majority and those who dissented recognised the highly unsatisfactory nature of Anisminic. Lord Carnwath said something to that effect. In the interest of saving time I shall move to Lord Wilson, dissenting, who said that the Appellate Committee
“picked a fig-leaf with which it attempted to hide the essence of its reasoning … The committee thereby set up 50 years of linguistic confusion for all of us who have been heirs to its decision.”
As the Government’s response to the Faulks report says at paragraph 55, legislation is communication. The text cannot speak for itself; obviously, it has to be interpreted by the courts. Effective communication requires a common and stable language—a point made elegantly by Professor Ekins in his book on legislative intent. Linguistic sleight of hand of the type deployed in Anisminic in undesirable. It generates not merely confusion but an unnecessary degree of tension between the executive and the courts.
If, as I think may be the Government’s intention, the formulation of the ouster clause in this Bill accelerates the retreat from Anisminic and promotes effective communication between Parliament and the courts in what is certainly a delicate area, it may be regarded as a good thing.
Lord Hacking (Lab)
My Lords, as I stand in this House for the first time after 22 years of absence, I was particularly touched by the words of welcome by the noble Lords, Lord Ponsonby, Lord Thomas and Lord Howard. Of course, I remember those faraway days jousting with Lord Howard in the Cambridge Union when we were at Cambridge together. This is a speech which is a kind of maiden speech but is not a maiden speech. The reason is very simple in that the maiden speech that I did make in 1972 has counted in.
Let me set the scene. It was during the Edward Heath Government, when the Leader of the House was Earl Jellicoe, the son of Admiral Jellicoe of Jutland fame. The Leader of the Opposition was Lord Shackleton, the son of the great Antarctic explorer. We had one Cabinet Minister in the Lords—Lord Carrington, Secretary of State for Defence—and Lord Hailsham, after his sojourn in the House of Commons, returned to sit on the Woolsack and gave audible asides to the Bishops, saying nothing complimentary about anybody. When the Bishops went on, on the Bench beside him, he turned to his left, to the Liberals, and gave the same asides to them. So it was that I made my maiden speech on 26 April 1972.
Rather unbelievably, when we get to April 2022 it will be 50 years since I first spoke in the House, but I remember it as though it was yesterday. The debate was on a UK population policy and was moved by Lord Vernon. On the Government Front Bench was Lord Aberdare and on the Labour Front Bench was Baroness Serota. I particularly remember Baroness Gaitskell, widow of Hugh Gaitskell, and Baroness Summerskill, who, as Edith Summerskill, was a very feisty Member of the House of Commons. The feature that I particularly remember was that they came to this House wearing rather good hats, and they were not the only Peeresses who felt that they were in a state of undress unless they came into the House with a hat. It is somewhat of a disappointment for me now to find a lot of very welcome life Peeresses but no hats at all.
I would like to take a slightly different approach from that of other noble Lords and look at the changes that have come to this House and how they impact on our work on Bills such as this one. When you have been away for 22 years you notice significant changes. The first and most welcome change is the presence of many more—and a high quality of—life Peeresses, who clearly are now major contributors to the work of this House, which provides a massive benefit. Another noticeable change is that the House is now much more proactive and busier. It has a contemporaneous Chamber, which I notice is still at business, in the Grand Committee in the Moses Room. One can identify other features of the House today, such as the much greater use of Oral and Written Questions, and the number of speakers that take part in each debate. I understand that when we got to 25 speakers for this debate a stop was put, but there would have been others if they could have listed themselves.
The other change is the number of amendments that this House moves. The Minister remembers well the Police, Crime, Sentencing and Courts Bill, which is a bit heavy to hold in the hand, and the Marshalled List of amendments, which I also hold in my head. I was interested in, and asked the Legislation Office, how many amendments had been tabled and moved on Report, and I got the astounding figure of 730.
The worry is that while it is a great achievement to get Bills such as that one through the House, it is also cascading on to the user countless new laws and cascading them on to the lawyers who must interpret them, which is not altogether easy. Take Clause 1 of the Bill. It is only when you get to Clause 1(9) and the two sentences resting beneath that you begin to understand the objective of that provision. Judges and numerous other users, such as the police, and health workers and so forth with the Health and Care Bill, have these responsibilities. I have a first cousin, now retired, who is a very distinguished professor in criminology at the University of Ottawa. He wrote a book, Less Law, More Order. I suggest that we should be thinking about that when we have any Bill such as this in front of us, because there is a grave danger that this Bill could become a victim of more law and less order.
On the Bill itself, I declare an interest. I am on the council of Justice, the legal charity that is actively involved in access to justice and the presentation of justice. I will leave all comment on Part 2, which can be done in Committee. However, as do other noble Lords, I have a grave concern over Part 1. As a matter of principle, we should not be providing a statutory block in the judicial review appeal processes as identified, many of them being asylum and immigration appeals. These people are the most vulnerable people entering our courts system. As Lord Dyson said in Cart:
“In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”
I hope very much that when we get to Committee and Report we recognise that in the processes which now exist, and through the First-tier Tribunal and the Upper Tribunal, meritorious applications do get further consideration and the non-meritorious applications are dismissed. For those practical reasons, we need not interfere with the structures that are now in place, particularly under the Tribunals, Courts and Enforcement Act 2007. We are taking a step back if we start interfering with that.
Lord Etherton (CB)
My Lords, it is a great privilege for me as a relatively new Member of this House to follow such a long-standing and distinguished person as the noble Lord, Lord Hacking. I am very pleased to do so.
In my five minutes I would like to deal with four matters. The first is quashing orders. It is advantageous for the court to have the remedies open to it increased. The problems here arise under the mandatory provisions of Clause 1(9). There are two problems, in my view: first, that there is no need, and it is unhelpful, to circumscribe the discretion of the court; and, secondly, that it will be unclear in many cases how the court should apply the phrase
“would as a matter of substance offer adequate redress in relation to the relevant defect”.
I predict that there will be a plethora of satellite litigation and appeals in relation to the court’s approach to those words in many cases.
The second matter is the abolition of the Cart jurisdiction. This area of consideration is bedevilled by the lack of published statistics. Based on my own experience as Master of the Rolls and Head of Civil Justice for over four years until January last year, I agree with the IRAL report of the noble Lord, Lord Faulks, that the Cart judicial review jurisdiction has been abused in many cases.
The filter on abusive cases should—and, I assume in the absence of any specific published statistics, would—be dealt with at the stage of permission to apply for judicial review. That is dealt with, or can be dealt with, on paper, and if permission is refused, there is no right for the applicant to renew the application at a substantive hearing of the judicial review.
What concerns me particularly, from my own experience, is that if the Cart jurisdiction is unsuccessfully invoked, at that stage or subsequently—the leave stage or the substantive hearing—the matter rarely terminates with the administrative court of the Queen’s Bench Division. Inevitably, the applicant will then seek permission to appeal to the Civil Division of the Court of Appeal, either from the refusal of permission to bring judicial review proceedings or from the dismissal of any substantive application. I rely on my own experience and knowledge to say that the success rate of applications to the Court of Appeal for permission to appeal is minuscule and diverts the Civil Division of the Court of Appeal from addressing other appeals, which causes delay and so injustice and imperils the international standing of the court. So, there are, in fact, false potential stages to consider when considering whether permission to appeal should be given back at the tribunal stage.
What is to be done about this? The noble Lord, Lord Ponsonby of Shulbrede, points out that there are cases where injustice would result from a refusal of a Cart review. A middle course, which I ask the Government to consider carefully, would be to retain the judicial review jurisdiction of the Queen’s Bench Division but provide that there shall be no appeal to the Court of Appeal from either the refusal of permission to bring judicial review proceedings or an unsuccessful substantive application.
Thirdly, on the Online Procedure Rule Committee, it will be many years before full digitisation of court processes. Even then, it is likely that many cases will be excluded from online procedures, whether because of litigants in person, the inability of one of the parties to master digital processes, the nature of the case, or other reasons. Co-ordination between standard rule-based proceedings and online processes is currently achieved by both of them falling within the remit of the Civil Procedure Rule Committee, the Family Procedure Rule Committee, the Tribunal Procedure Committee, or the stand-alone digital steering committee, which I set up, between all of which there is an overlap in membership. The provisions of the Bill dealing with online rules and the establishment of the Online Procedure Rule Committee contain no express provisions to ensure co-ordination of any kind with the standard civil, family and tribunal rule-making committees. I suggest that consideration be given to amending the Bill to facilitate such co-ordination.
My final point is on pro bono costs. I am grateful to the Minister for sympathetic consideration of my proposal to include in the Bill a provision to amend Section 194 of the Legal Services Act 2007 to enable tribunals, as is currently the case in the civil court, to order an unsuccessful, legally represented party to pay pro bono costs to the Access to Justice Foundation, where the successful party has been represented pro bono. I will bring forward an appropriate amendment in Committee.
Lord Moylan (Con)
My Lords, being still relatively new in your Lordships’ House, it seems impertinent of me to start by welcoming the noble Lord, Lord Hacking, to his place, but I do so heartily. I add only that, from the pictures hanging in the corridors, there are many precedents that men used to wear hats in the Chamber as well, so perhaps we should make it a universal ambition to restore that for everybody.
Obviously I am speaking in the company of many distinguished lawyers, and not being myself a lawyer, distinguished or otherwise, it is likely that I am going to go tramping off the narrow path that has been trodden so far. I intend to do that, because I propose to use my few minutes to talk about airports, about which I do know something. My complaint is, as noble Lords will hear, not that the Bill goes too far but that the Bill is far too narrow.
Let me start by reminding noble Lords that when the Roskill commission reported in 1971, recommending the siting of London’s third airport at Cublington in Oxfordshire, it took the Government of the day 30 months in total to reject the recommendation, adopt another plan altogether and legislate for that other plan through the Maplin Development Act. By contrast, the Airports Commission chaired by Sir Howard Davies reported in June 2015, recommending a third runway at Heathrow, and it took the Government three years, until June 2018, to prepare and bring forward the national policy statement for designation by Parliament. Part of the reason for that delay is no doubt that the Government, or their civil servants, were paying close attention to the book mentioned by the noble Baroness, Lady Whitaker, called The Judge Over Your Shoulder, with the mistitled subtitle A Guide to Good Decision Making.
In June 2018, Parliament designated the national policy statement. That did not give it the force of statute, but it did give it a statutory force. None the less, campaign groups then got together and brought judicial review proceedings, which were rolled up and heard by the High Court. By my recollection, 17 points of objection were made to the process followed by the Government. All of them were dismissed by the High Court. Nothing daunted, the campaigners headed off to the Court of Appeal. All 17 points were considered again. Of course, the objectors had to win only one point to gain their objective, and they did. The Court of Appeal stubbed its toe on the question of what the definition of “policy” was in the phrase “government policy”. The NPS was then suspended by the Court of Appeal until the Government redid their homework.
I will cut to the chase: that did not actually happen. Instead, the case proceeded to the Supreme Court, which, in December 2020, five and a half years after the Airports Commission had submitted its recommendation, reversed the Court of Appeal decision and effectively, as I understand it, rejected all the objections that had been made. That nearly brought the Government and Heathrow Airport to the point where they could then start to submit a development consent order for consideration by inspectors to be appointed.
The third runway is now moot in any event because of the pandemic, just as Maplin fell before a change of government and the massive hike in oil prices that occurred in the early 1970s. So neither of those is particularly a live case at the moment, and I am not here to argue Heathrow’s case. Far from it: I have spent 20 years campaigning against the expansion of Heathrow. My concern is broader than that. It is that the third runway was to be—and if it goes ahead, is to be—financed by private capital. The delay and uncertainty added by this lengthy, constantly shifting response in judicial review, have a real cost on the cost of capital, which we all have to pay. It has a chilling effect on foreign investment in UK infrastructure. This is not the vindication of citizens’ rights spoken of by certain noble Lords; this is the continuation of politics in the judicial forum. Different noble Lords will react differently to this. Some will see it as the law doing its job. I do not. I see it as a distortion of the balance of our constitution compared with 1971. I put this down as a challenge to those who have suggested so far in this debate that everything is more or less beyond improvement in the judicial review garden.
Lord Hope of Craighead (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Moylan. I will say a few words about the provisions in Part 1 of this Bill as I have had some experience of the issues raised by both clauses in it.
I refer first to Clause 1, on quashing orders. The Minister was kind enough to refer to the case of Ahmed v HM Treasury. In that case, the Supreme Court held that an Order in Council made under the general wording of the United Nations Act 1946 freezing the assets of people suspected of terrorism should be set aside because such an extreme step should be taken only with the express authority of Parliament.
I found myself in a minority of one against six in holding that our order should be suspended to give time for the matter to be corrected before the assets were dissipated. Those against me said that to suspend the order would undermine the credibility of the decision we had taken, but I found myself unpersuaded by that argument. In the event, Parliament was able to pass emergency legislation in time, but it was a close call. I think it would have been easier for me to carry the rest of the court with me if the power to hold that the quashing should not take place until a later date had been written in statute. There are, no doubt, other examples of situations where the power to do this would be desirable.
I am inclined to agree too with the proposal to enable the court to provide a prospective-only remedy where it holds that an order should be quashed. I gave a judgment some years ago in which I indicated, in agreement with Lord Nicholls of Birkenhead, that I was in favour of that remedy. We were dealing in that case with a common law rule, but the flexibility that this provision offers in the case of the quashing of orders made by the Executive, under which decisions of all kinds may already have been taken, is to be welcomed. But I share with others some concern about the wording of Clause 2(9), where the word “must” appears. Much will turn on the precise meaning of that word in the overall context, but one has to be careful. One should not deprive victims of the illegality of an effective remedy; there may be situations where that would be unjust. There is a question of balance here, which is best left to the judiciary, taking case by case.
Turning to Clause 2, I was a member of the panel of the Supreme Court in the Cart case, which it seeks to reverse, and I wrote the leading judgment in the Scottish case of Eba. In holding that decisions of the Upper Tribunal should be open to judicial review, we set the bar as high as we could when we were defining the test that should be applied. I appreciate that there may be a question as to whether the Government are right in saying that experience has shown that our choice of remedy has not worked, although the noble Lord, Lord Faulks, has given us much of what was in his report to indicate that that is the case. If that is so—and I am inclined to follow the noble Lord—it seems to be time to end this type of judicial review.
We would, in the result, be returning to the original recommendation by a committee chaired by Sir Andrew Leggatt, to which I referred in my judgment in Eba: that the appeals system should be used and that judicial review should be excluded. Some support from that recommendation can be found for making this change.
I add two other points. First, to describe the provision in Clause 2 as an ouster clause seems just a little bit too strong. It is reversing the decision in Cart and, taken in its context, the wording has to be as clear as it is to make it clear that there can be no return to the Cart decision. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the Clause seems tailor-made to the context. It is certainly very far removed from the ouster clause in the Dissolution and Calling of Parliament Bill, in the context of the use of prerogative powers which causes some of your Lordships concern.
The second point relates to the extent provision in Clause 47(6). Coming from Scotland as I do, I tend to look at these clauses to see how much of the Bill I need read. If I am told that a part does not apply, then I need not trouble with it. The problem in this case is that one finds that Chapter 1 of Part 2 deals with criminal procedure, none of which applies in Scotland at all. I wonder why Clause 47(6) does not say so; it is saying, in effect, that it applies to Scotland. That really does seem to be a very strange way of legislating. There may be points to be made about Chapter 2 of Part 2 as well. I would be grateful if the Minister could assure me that the issue we have already discussed will be looked at again, in case some correction should be made.
Lord Pannick (CB)
My Lords, I declare my interest as a barrister who has practised in the field of judicial review for 40 years, representing clients as diverse as asylum seekers, the Reverend Moon and the noble Lord, Lord Howard. I fear I am at least partly responsible, wearing that hat, for what the noble Lord described in his most entertaining and provocative speech as the discordant note he expressed about judicial review. I had the pleasure, though rarely the success, of frequently acting on his behalf when he served as Home Secretary in the 1990s and was—how shall I put it—a regular customer in the judicial review courts.
Your Lordships will recall that the Government announced in last year’s Queen’s Speech that they would be bringing forward legislation to
“restore the balance of power between the executive, legislature and the courts.”—[Official Report, 11/5/21; col. 3.]
I am therefore surprised that Clause 1 seeks now to confer on the judiciary a very wide new power to absolve unlawful acts. This includes, as expressly stated in proposed new Section 29A(4) and (5), a power for the court to say that an act unlawful when it was carried out shall be treated as if it were lawful at that time. This is a remarkable power to confer on the judiciary.
I am not sure about the metaphysics of nullity to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred. I am more concerned about the nuts and bolts of this. If exercised, this power would mean that people who have suffered loss and damage by reason of unlawful government action would be denied compensation or damages for that wrong. It would mean, as the organisation Justice has pointed out in its very helpful briefing paper, that people who have had to pay tax under an unlawful regulation would be unable to require a refund. It would mean that people who had been prosecuted under an invalid statutory instrument, perhaps for a driving offence or a breach of the coronavirus regulations, would be unable to have their criminal record altered.
It cannot be right that a court should have a power to decide that something that is unlawful shall be treated as lawful despite such implications. That is why the Faulks committee, to which the Minister rightly paid tribute, recommended only what would be new Section 29A(1)(a)—that is, a power for the court to suspend a quashing order for the purpose of allowing time for Parliament to intervene if it thinks fit; no constitutional vandalism there.
By contrast, to give the judge a discretion to say that what was unlawful shall be treated as lawful is to encourage judges to enter into very treacherous waters. It requires the judge to assess the merits of competing policy factors that it is entirely inappropriate for the judiciary to assess. In his opening speech, the Minister rightly emphasised that judicial review is not concerned with judges deciding the merits of a decision or a policy. This new power will encourage and require judges to do precisely that. All of this is even more objectionable when one takes into account the fact that there is to be a presumption of “no retrospective effect” for the quashing, as some noble Lords have mentioned.
I say to my noble friend Lord Anderson of Ipswich that I am not minded to look more favourably at this “no retrospective effect” power, because, as he rightly points out, the Court of Justice of the European Union has claimed, and sometimes exercised, such a power. I have less experience of that court than my noble friend Lord Anderson, but I have enough experience to know that its practices are far from a model to be copied.
I look forward to debating the Bill, Clause 1 and other points that have been raised with the Minister and other noble Lords in Committee.
Baroness Chakrabarti (Lab)
My Lords, it is an absolute privilege to follow my learned friend, the noble Lord, Lord Pannick, with his unrivalled experience in this area. I have had the pleasure to work with him for not 40 but 25 years, including in defence of the noble Lord, Lord Howard, and against the interests and decisions of previous Labour Governments. I also declare my interest as a council member of Justice, and I join others in welcoming and congratulating my noble friend, who, like a maiden, is introduced for the very first time.
Each new week brings another briefed or otherwise-exposed attack upon the rule of law from a Government neither conservative nor liberal in their instincts towards a once-treasured value. This populist pattern is as wearing on the soul as it is corrosive to vital institutions of good governance, without which trust in democracy cannot be sustained. Yet however soul-destroying the exercise, we in your Lordships’ House cannot afford to let up in our scrutiny, even of measures that appear—perhaps at first glance, to the lay or naked eye—to be slightly less offensive than entrenching discrimination against Travellers, putting down peaceful dissent, repelling refugees or engaging in voter suppression. Attacks upon judicial review, obtaining criminal convictions online with insufficient safeguards and having fewer jury trials and inquests need to be seen in that broader context, with an eye to millions of hidden victims of the arrogant, indolent and ignorant Government whom the noble Lord, Lord Agnew, has recently left.
Judicial review of administrative action is a vital protection in a system founded upon the rule of law. It cannot be conflated with civil disputes between individuals or commercial litigation between corporations. It exists to level the playing field between citizens and the state to prevent oppression of the former and corruption of the latter.
Individual cases must be seen not as nuisances to be swatted away by an omniscient Executive. The independent “judge over your shoulder” is as much a check and balance upon government as is your Lordships’ unelected House. Indeed, legislature and judiciary work in tandem to ensure that Ministers and officials respect the letter and spirit of both the rules and the discretion accorded to government by a sovereign Parliament—not a sovereign Executive. A single successful judicial review finding of illegality against the Administration need not result in an avalanche of claims, as long as the Secretary of State or another public authority halts unlawful practice and the court possesses adequate discretionary remedies in relation to both the claimant and all others in the affected class.
Clauses 1 and 2 need to be seen in this light. Binding or attempting to bind the hands of courts with a presumption towards prospective-only quashing orders could have the following consequences, as we have heard. Criminal convictions under unlawful emergency regulations could go unquashed. Unlawful taxation or deprivation of benefits could go unrectified, to the detriment of hundreds of thousands of innocent citizens who might be driven into debt or destitution. Unlawful and even corrupt government grant schemes could be struck down by the courts but with millions or billions in unjust enrichment unrecoverable by the state. People unlawfully removed from the country, including British nationals, would be dependent on the largesse of the Government who unlawfully removed them for a route home. Ousting or excluding the court’s jurisdiction over Upper Tribunal permission decisions could deny review to those denied asylum on the basis of fundamental errors of law. It could deny scrutiny of flawed tax or benefit regimes or decisions affecting millions of pounds and people.
Perhaps the Minister will reassure us that such things just do not happen here or with the overarching protection of the Human Rights Act. After all, it is his name on the statement. Would he like to respond to rumours that the Government have already begun drafting a Bill to scrap the Human Rights Act?
The papers report that it will take a “Panzer division” to remove the Prime Minister from No. 10. That phrase is surely worthy of the Jimmy Carr joke book and the Donald Trump playbook combined. This Bill, however, is no joke, because no one is above the law.
Baroness Jones of Moulsecoomb (GP)
It is a pleasure to follow the noble Baroness, Lady Chakrabarti, and I agree with everything she said. I am the 17th speaker but only the third woman, which says a lot about our society’s past but, I hope, absolutely nothing about its future. I have no legal training, so the Minister will have to hear me as a voice from the street; actually, that sounds a bit louche: the voice of common sense—of the common people.
A couple of months back, I said that every single Bill the Government brought to this House was worse than the last, but this is an exception. It is not as bad as I expected, so well done to the Government for bringing such a puny Bill that we can probably throw most of it out. The Bill continues the Government’s piecemeal approach to constitutional change: a little bit is tweaked here and a little bit there, but no overview is taken and so nothing coherent comes out.
We need an opportunity to look at how government and power should operate in a modern democratic state—not that we have a modern democratic state, but we really should have one. The proper way forward is obvious: we need a constitutional convention made up of experts and members of the public to determine how and why government should work. Instead of that, we have these scrappy little bits of legislative change.
The Bill is pretty empty. After what the Government said about judicial review, I expected something quite hefty—a big attack on judicial review—but this is really not very serious at all. All we have in this Bill is a new remedy for the High Court to award a weakened form of quashing order, although it is difficult to envisage many circumstances in which a judge might find this to be relevant.
More concerning is the scrapping of the Cart judicial review, of which we have had some wonderful explanations. I have enjoyed it very much; I felt I should be taking notes at various times, but I can read Hansard. Scrapping the Cart judicial review would be a mistake. It is an important legal avenue for people going through the Asylum and Immigration Tribunal. I hope that the opposition can join together on Report to remove Clause 2.
That is it for judicial review; the rest of the Bill is about the courts. Surely this should have been the “courts and judicial review Bill”, because there is so much more on the courts.
The procedural stuff in the Bill is an attempt by the Government to save money in the justice system and to unclog the backlog in the courts, which have been atrociously underfunded. Their budgets have been slashed by this Government, who are now trying to mop up a bad situation that they have caused themselves. It is a win for everybody who believes in the rule of law and checks and balances against executive power, but it is not enough. These procedural changes might help. For example, things such as the written indications of plea might seem to try to take lessons from other places but, quite honestly, if there is not proper investment in staffing all these things, it could easily fail and exclude a lot of people.
It was a pleasure to listen to the noble Lord, Lord Hacking. I assure him that, in spite of our tabling 700 amendments to the police Bill, as soon as it gets back to the Commons the Government will throw them all out. In fact, there are not really many extra laws at all, after all our work.
There are risks of injustice in the Bill. The Minister will not want that, so I am sure he will listen to this House when we point them out.
In summary, these measures might help but are no replacement for proper investment in the justice process. The most likely cost savings will be from people pleading guilty, as the noble Lord, Lord Ponsonby, pointed out, when they should have defended their case. That injustice will be inflicted by this Government.
Contrary to what some in government have made out, lawyers are officers of the court who play an essential role in making the justice system function effectively. Cutting them out with paper proceedings will be like taking a pair of scissors to the whole principle of justice. I have cut my speech massively to fit into five minutes—almost—but I will of course be back in Committee and on Report.
Lord Sandhurst (Con)
My Lords, it was a pleasure to hear the speech of the noble Lord, Lord Hacking, and his tour d’horizon of the giants and giantesses of old. I shall speak only in respect of the proposals relating to judicial review. My focus will be on the suspended quashing orders.
The elegant report from the independent review chaired by my noble friend Lord Faulks had these concluding observations. I point to two in particular. First, it said:
“It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … On one view, a degree of conflict shows that the checks and balances in our constitution are working well.”
Well, they are working well at the moment. Secondly, it said that
“the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”
The Bill gives judges sensible new powers to address errors in legislation and administration.
The panel concluded that suspended quashing orders would bring benefits. It explained why. It identified concerns that, in certain cases, the courts have overstepped constitutional boundaries in ruling against legislation. The report said that such concerns
“would have been substantially allayed had the remedy in those cases consisted of a suspended quashing order.”
That is because such an order could have indicated that the impugned exercise of public power would be automatically quashed at a fixed point in the near future unless Parliament legislated in the meantime to ratify the exercise of that power. It is giving Parliament a choice.
As the panel explained, such a suspended order would have made it clear that the court acknowledged the supremacy of Parliament in resolving conflicts between the Executive and the courts as to how public power should be employed. Such orders will go further than issuing a mere declaration that a Secretary of State has acted unlawfully. That approach has been used where to quash regulations would cause undue and unmerited disruption, but some people feel that it is a bit of cop-out. A suspended quashing order will have more teeth than a declaration. It could indicate that regulations will be quashed within a certain time from the date of the judgment unless the Secretary of State has in the meantime properly performed his or her statutory duties and considered, in the light of that exercise, whether the regulations need to be revised.
I suggest that the criteria under new Section 29A(8) give the court ample scope to avoid injustice. The courts will be free to decide whether or not to treat an unlawful exercise of public power as having been null and void from the outset. In reality, its discretion will not, I suggest, be unduly fettered. The ability to make such orders will be especially useful: first, in high-profile constitutional cases where it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament; and, secondly, in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. Finally, I note with a little gratification that the Bar Council, which I once chaired, has said that it has no significant concerns about these provisions in the Bill as drafted.
I commend this provision. I also support the provision to overturn the decision in the case of Cart. As the panel—and other noble Lords—explained, the continued expenditure of judicial resources on considering applications for a Cart judicial review cannot be defended. The practice of making and considering such applications again and again must be discontinued. The ouster clause is carefully crafted and does not set a dangerous precedent for the future.
Lord Judge (CB)
My Lords, I welcome the noble Lord, Lord Hacking. He and I used to hack around the Bedford Quarter Sessions, appearing in front of that terrifying tribunal, the then Geoffrey Lane QC. We learned a good deal in that court. Judges were much tougher in those days than they are now.
I also draw the House’s attention to the amazingly stalwart, stout-hearted support that the noble Lord, Lord Howard, gave to those of us who were attacking the legality of the internal market Bill. I was personally very grateful to him throughout that process, and the House should continue to be grateful to him for it. I was also interested to note his anxiety that the Bill does not go far enough, so let me take something completely different that nobody else has spoken about yet.
I ask your Lordships to consider Clauses 17 and 29, which give the Minister lovely Henry VIII powers, which will enable him, by regulation, to go back to the other place and offer the strengthening that the noble Lord, Lord Howard, would welcome, and to do so by way of subsidiary regulation. Please can we watch out for that? It is a double Henry VIII clause: one for Chapter 1 and one for Chapter 2.
Beyond that—and trying not to repeat what everybody has said—let us look at Clause 1(8), which reads:
“In deciding whether to exercise a power under subsection (1), the court must have regard to—”.
There is one astonishing omission. What is wrong with the interests of justice? It is a simple concept; we all understand it. The words
“any other matter that appears to the court to be relevant”
do not do the trick. What about the interests of justice?
I hope that the Minister will kindly confirm that “good reason” in Clause 1(9) may be found if the order would not provide adequate redress. I think he said so. If that is the case, will he confirm it at the Dispatch Box? If that is the case, why purport to add a whole series of discretionary elements to what starts off as a discretionary remedy? We do not need it.
As to Clause 2, I support the view that Cart should be overruled, but I wonder whether we need the words
“and not liable to be questioned or set aside in any other court”
and then, “In particular” (a) and (b), because the whole of Cart is remedied by simply going from “the decision is final” to the “supervisory jurisdiction” text as set out in new subsection (3)(b). If that comes into force, the judicial review proceedings in Cart cannot be repeated. I think that I have spoken long enough.
Lord Marks of Henley-on-Thames (LD)
My Lords, it is always a great pleasure to follow the noble and learned Lord, Lord Judge. He told me yesterday that he would speak briefly, but he says in a brief moment what most of us would take a great deal longer to say. It has been a fascinating debate, enlivened by the returning maiden speech of the noble Lord, Lord Hacking —at once entertaining and instructive—as well as by the powerful speeches of the many noble Lords who have spoken. However, I believe that the significance of this important Bill has been underplayed by the Government. The Minister described the provisions in Part 1 as just sensible tidying-up measures; additions to the judicial toolbox, as he put it. It is on those that I will concentrate.
It is not always easy to express concerns that reflect not only what a Bill actually says but, just as much, what it might lead to—its direction of travel. However, we on these Benches have always been concerned that the Government do not like JR, that they see it as an unwarranted interference with the Government’s right to govern, and that they resent the courts stepping in to constrain government action on grounds of unlawfulness. We saw that in the two Miller cases, over triggering Article 50 without parliamentary authority and the unlawful prorogation—the latter mentioned by the noble and learned Lord, Lord Garnier, and both objected to in round terms by the noble Lord, Lord Howard.
For us, the rule of law is paramount and, in response to the noble Lord, Lord Howard, that generally means the law as passed by Parliament. When the Administration exceed their powers and get it wrong, the citizen is entitled to have the error put right, and, most importantly, so are others who have in the past been affected by the same error. We saw considerable risk in the Conservative manifesto commitment to ensure
“that judicial review is available to protect the rights of individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”
It was that commitment that led to the Faulks review, specifically tasked to consider what powers should or should not be justiciable. To the credit of the noble Lord, Lord Faulks, who has spoken eloquently today, he and his panel produced a careful and well-balanced report, which effectively gave judicial review a clean bill of health, but recommended that the court should have the power to suspend the operation of quashing orders and the ending of Cart JRs—hence Part 1 of this Bill.
The Clause 1 power should be limited to suspending the operation of quashing orders to enable the Government or other authority to put defective decisions right before a quashing order takes effect. The argument goes that it is unnecessary and sometimes unjust for the court to have to resort to the somewhat blunt instrument of a quashing order when the authority could, and should, instead be given the opportunity to put right its flawed decision first.
Along with the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Hope of Craighead, we would not in principle oppose that possibility. There is nothing wrong in principle with the High Court, on judicial review and on finding that an authority has acted unlawfully, having the power to give that authority an opportunity to correct the unlawfulness rather than quashing the decision altogether. But the power of suspension in the Bill is more extensive than that, as the noble Lord, Lord Pannick, pointed out.
Clause 1 goes much further. It is entirely retrograde to propose that a quashing order may remove or limit the retrospective effect of a quashing, and it is not just an option, as my noble friend Lord Beith and others pointed out. New subsection (9) imposes an obligation on the court to suspend a quashing order and remove or limit its retrospective effect if the modified order offers what the Bill styles “adequate redress”. The court must then exercise its powers to suspend and remove or limit retrospective effect. Yes, there is a qualifier, in the words,
“unless it sees good reason not to do so”,
but that does not relieve the court of its proposed primary obligation—a point made by numbers of noble Lords. As the noble Baroness, Lady Whitaker, argued, the Bill fetters judicial discretion. I fear that the agnosticism of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on this wording is overoptimistic.
I see the danger that the effect of a JR may, in time, come to be limited to the immediate complainant, and that others affected by past unlawful action will not be able to bring cases arising out of their unlawful treatment. They will be too late to bring JR proceedings of their own, but it may become too easy for Governments to say: “It’s too late to change it now. It’s water under the bridge. There are too many people potentially affected. It would be too expensive to give them all relief”. Let us consider a small unlawful charge levied by a department which may affect a wide class of people, most of whom will have no idea of the unlawfulness. How far would the court, now or in the future, decline to make a quashing order retrospective in those circumstances—a point persuasively made by my noble friend Lord Thomas of Gresford? The concern is that this legislation could be—or could become—a dangerous shield for unlawful action. The noble Baroness, Lady Chakrabarti, expressed similar concerns about the future.
Turning to Clause 2, the proposal to do away with Cart JRs, the Government’s argument is that a JR by a divisional court of the High Court to set aside a decision of the Upper Tribunal, generally also presided over by a High Court judge, is irrational, unnecessary and also wasteful of resources, because it is, or should be, a last resort and rarely ever used successfully—a success rate of 0.22% was originally quoted, now revised to 3%-plus.
As against the Government’s argument, the overwhelming majority of Cart JRs—some 92%—are immigration and asylum cases. The stakes are often very high: deportation is frequently involved, often to very hostile countries where there is a serious risk of torture or maltreatment, as mentioned by the noble Lord, Lord Hacking. There is no exception in the Bill for such cases, and the cases that give rise to Cart JRs are often paradigms of circumstances that affect hundreds of other cases, so a low number of successful JRs may have a disproportionately broad effect.
The low success rate of Cart JRs is unsurprising, but the overwhelming majority of cases are weeded out as hopeless at the permission stage on the papers. Large numbers of others are either settled by the Government or reheard by the Upper Tribunal by agreement. The proposal of the noble and learned Lord, Lord Etherton, to limit the process deserves serious consideration, but with this provision and its dangers, as so often, the sting is in the drafting. My noble friend Lord Thomas mentioned new subsection (2), which states:
“The decision is final, and not liable to be questioned or set aside in any other court.”
New subsection (3) says:
“In particular … the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision”—
any error. The exceptions in new subsection (4) cover a tribunal acting “in bad faith” or
“in such a procedurally defective way as amounts to a fundamental breach of … natural justice.”
But what is fundamental in this context, and does the exception cover a tribunal acting in a way which is tainted by apparent bias—that is, where although not actually biased, a fair-minded and informed observer might well believe that the decision was influenced by bias?
I believe this is an ouster clause, pure and simple—the effect of which, bluntly, is to put government above the law. In that, I disagree with the noble Lord, Lord Sandhurst. I say that in particular because of the precedent it sets. I suggest to the noble Baroness, Lady Jones of Moulsecoomb, who made some very powerful points, that we should avoid complacency about the puniness of the Bill.
In a Cart JR, the impugned decision is that of an Upper Tribunal chairman, often a High Court judge, and the abolition of review of such a decision may be of restricted effect. But the danger is far wider. As my noble friend Lord Beith pointed out, the Government’s press release stated, chillingly, that
“the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
In other words, the Government intend to use the wording in subsections (2) and (3) as a template to outlaw judicial review in other legislation when they do not want the courts to interfere with their legislative purpose. That is a threat of a direct and permanent attack on the rule of law. It was not foreshadowed, still less sanctioned, by the report of the Faulks review. It should be a cause of grave concern to this House.
I have spent some time on JR, and I will not spend time considering the other parts of the Bill. We broadly support the modernisation proposals in it. We are determined to see that the move to greater use of online procedures maintains protection of those who are digitally excluded for whatever reason, be that lack of equipment, of broadband or of digital skills. We appreciate the Minister’s assurances in that regard given today, and to me in a meeting the other day, for which I was grateful.
My noble friend Lord Beith has voiced concern about the proposals for coroners’ proceedings. We have other concerns about a number of other details in the Bill, but I look forward to coming to those in Committee.
Baroness Chapman of Darlington (Lab)
My Lords, I apologise to noble Lords for not being here for the opening speeches of this debate. I informed the Minister earlier today, and he was generous enough to accept that.
I congratulate my noble friend Lord Hacking on his entertaining speech—I do not know whether we are calling it a maiden speech; I am new here, and it struck me that he made his maiden speech before I was born. I had not previously heard the term “Peeress”, so that was a new one. I do not have a hat, although I am very happy to explore the option of wearing a hat in the Chamber. I look forward to seeing him in a hat of his own in the future.
Unfortunately, we on these Benches do not agree with the Government on the need for many of the sweeping changes that they are proposing in the Bill. Colleagues in the Commons tell me that the Ministers there worked collaboratively with us but, unfortunately, were unable, at those stages, to agree the changes that we had hoped to see and that, we maintain, would vastly improve the Bill.
I will be completely straightforward about it: we do not quite understand why changing the judicial review process is a government priority at this point. The Ministry of Justice is trying to fix something that is not broken, and, as my noble friend Lady Chakrabarti said, judicial review is a vital protection, founded on the rule of law. The Government are doing this while failing to deal with issues that are a problem, such as the horrendous backlog in access to justice. We are concerned that the Government’s changes to judicial review could deter members of the public from bringing claims against public bodies, leaving many victims of unlawful actions without redress.
It is always interesting to think through how we get to places. An expert panel was set up to advise us, and we have heard from the leader of that process this evening. It seems to me that Ministers were not completely satisfied with the conclusions of that process. Many of us can detect that the reforms now proposed are not as far-reaching as initially heralded, and we wonder whether, in the near future, there is to be another Bill that the current Secretary of State will initiate. We sincerely hope that that will not be the case.
The proposals are based on figures that the Government have accepted are inaccurate in that they underestimate the number of successful cases. With the Government’s review of the Human Rights Act on the horizon, as others have referred to, this is only the latest proposal to make it harder for ordinary members of the public to hold public institutions to account.
Where the Bill deals with coroners, we are optimistic that reforms will help, but the Government have missed the opportunity, as the noble Lord, Lord Beith, observed, to take sufficient advantage that this Bill allows. Particularly, we want to return to the issue of support for bereaved families at inquests where the state is represented. At the moment it is not justice: it is justice denied, and we will be returning to this.
As we have heard, there are reservations—if I can put it that way—about the Bill. If the noble and learned Lord, Lord Etherton, were to bring forward an amendment, as he outlined, we would be minded to support it.
The equalities statement that the Government very recently produced—it was only published after the conclusion of the Commons stages—states on page 5 that
“the removal of the Cart JR route is applied uniformly to any attempt to challenge a permission to appeal decisions of the tribunal, regardless of the subject matter at issue, the chamber of the First-tier Tribunal, from which the appeal originates or the protected characteristics of the claimant. We acknowledge, on the basis of the evidence and analysis, that there will potentially be a large number of claimants with certain protected characteristics of race and religion or belief in the affected group—i.e. those who are presently entitled to bring Cart JRs and would no longer be able to.”
The Government said that these indirect impacts are likely to be very small, given the low number of cases in which the claimant achieves a successful outcome. It may be true that the number of people affected is small, but if the consequence of the impact on that individual is as serious as imprisonment or worse, we would argue that it is right for the Government to consider this further.
The Law Society president has said that
“removing the option of recourse to judicial review in any area, let alone one as complex as immigration, risks injustice, not only for those people whom the court would have found in favour of, but also for the much larger number of cases where settlement is achieved only under the threat of judicial review.”
These are not reflected in the figures to which the Government have been referring.
We are concerned about access to assistance with digital procedures for those who may struggle. We want to know how this will be done and what safeguards the MoJ intends to put in place to ensure that nobody is disadvantaged. The Government say they are aware that some users might not have the means or the skills to access digital services and that they are going to provide assisted digital support designed to prevent those who have difficulty engaging with digital service being excluded. This is welcome, but it is vital that this good intention is supported by well-planned and accessible support, available at the appropriate time and of sufficient quality. We are yet to be convinced that the Government have properly thought through, in sufficient detail, how this is going to happen.
We do not want to stand in the way of improving our courts. We know that there needs to be substantial improvement, but overall, we are not persuaded that the Bill addresses the right issues or delivers the right solutions. We will seek to remove Part 1 and improve Part 2. We look forward to working with noble Lords on all Benches and, I hope, with the Government as well in this endeavour.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to all Members of your Lordships’ House who have contributed to a wide-ranging and, if I may say so, extremely good debate.
The noble Lord, Lord Ponsonby, referred to a number of pressure groups which had put out various press releases dealing with the judicial review measures. I have received those as well—I have even read them—and nothing in the Bill justifies the charge levelled against the Government of putting whole swathes of government policy or decision-making beyond the scope of review. The fact is that for some groups, any legislation in the field of judicial review is treated as necessarily improper and wrong in principle. Too many groups, I am afraid, wrote their press releases first and then read the Bill. That also goes, I have to say, for the Twitter feed of one Member of your Lordships’ House, who unfortunately cannot be with us this evening. This is not, to use the words of the noble Lord, Lord Beith, a full-frontal attack on judicial review. It is not even guerrilla tactics. What it is is a proportionate and sensible response.
I agree with the noble Baroness, Lady Chapman, that if it ain’t broke, don’t fix it—that is good Conservative philosophy—but my noble friend Lord Moylan showed us that there are improvements we can make and it is quite right for this House to look at judicial review, and that is even before we get to the jurisprudential niceties of what a quashing order actually is, what the difference is between a quashing order and a declaration, and why if you can get a declaration you need a quashing order at all. All those joys await us in Committee, when we get to what the noble and learned Lord, Lord Brown, referred to as “troublesome doctrines”. If it is troublesome for the noble and learned Lord, it is probably way beyond my—unpaid—pay grade.
Prospective-only quashing was raised by a number of noble Lords. The relevant point seems to be that there are plainly circumstances where a prospective-only quashing order is, and will be, in the best interests of justice and good administration. That is particularly relevant for individuals, businesses and families who may in good faith have taken actions based on regulations which are to be quashed. The noble Baroness, Lady Whitaker, referred to some very serious circumstances in some hypothetical examples. Those circumstances might well provide a good reason not to use a prospective quashing order, but the point is that the courts are not obligated to do so. What we want to do in the Bill is to provide the courts—I will use the metaphor again—with new tools in the toolbox but it is ultimately up to the judge to decide whether to take them out. To support this, Clause 1(8) lists factors which courts should consider when determining whether the new remedies are appropriate. The interests of justice is the overriding objective which governs everything the court does and that is, frankly, taken as read in anything the court does in any circumstances. But I say to the noble Lord, Lord Thomas of Gresford, that this does not limit the flexibility of the court. Clause 1(8) and (9) are there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.
I was grateful to the noble Lord, Lord Anderson of Ipswich, for his reference to other courts. It might perhaps be a first for a Conservative Minister to pray in aid the approach of the European Court of Justice. I am not going to fall into that particular elephant trap. But it is at least a response, and we will continue this in Committee, to the point made by the noble Lord, Lord Pannick, who seemed to say that the courts would end up in the position of having to deny compensation or damages, even in circumstances where it would be appropriate to do so. I respectfully say that that is not the case because ultimately the remedy is discretionary. However, I have to acknowledge the genius—if I may say—of the noble Lord in managing to get the names of the Reverend Moon and the noble Lord, Lord Howard, into the same sentence in Hansard. That must surely be a first.
The presumption in Clause 1 is properly circumscribed. The court is able to make a suitable order in each case. Therefore, I respectfully disagree with the approach of the noble Baroness, Lady Chakrabarti. New subsections (8) and (9) make that clear.
I am very happy to pick up the gauntlet that the noble Lord threw down about the Human Rights Act and to restate this Government’s commitment to the European Convention on Human Rights, which is the foundational underpinning of the Human Rights Act. I therefore take the comments of the noble Baroness, Lady Jones of Moulsecoomb, to heart: “It is not as bad as it could have been”—words last seen on my school report.
We want the judiciary to consider in each case the benefits that these remedies can bring. There will be cases in which they are appropriate and cases in which they are not, but ultimately the judge will decide. I therefore gratefully adopt the point, made by my noble friend Lord Sandhurst, that this will enable courts better to fashion a suitable remedy in each case.
My main response to the noble Lord, Lord Marks—we will continue to discuss this—is that the courts will look at all relevant circumstances when considering what remedy to provide. I got the impression that the noble Lord was tilting not so much at what is in this Bill but at what he fears might be in some future Bill. I respectfully encourage both him and the House to consider the legislation before us; we can consider any other legislation at the appropriate time.
The noble Lord, Lord Anderson of Ipswich, asked me the difference between adequate redress and effective remedies. I am sure we will discuss that in Committee. I have a note here; I will not have time to read it all out, but I am alive to the point and we will continue to discuss it.
The noble and learned Lord, Lord Judge, raised the Henry VIII powers. The powers being given to the Online Procedure Rule Committee and the Lord Chancellor are consistent with those given to other rule-making committees. There are checks and balances built into the legislation: the concurrence requirement, the affirmative resolution procedure, and the requirement for a majority of the committee to agree on changes to the rules. We have provided an explanation for the delegated powers in the Bill, including the criminal measures. We have published that online and sent it to the Delegated Powers and Regulatory Reform Committee.
I now turn to the Cart judicial review and whether the ouster, if we are to call it that, is a template for other Bills. The noble Lord, Lord Beith, said the Ministry of Justice had given the game away. I thought we had given a clear and straightforward answer to a question. The Government have made it clear on a number of occasions that there is nothing wrong with an ouster clause in principle; Parliament is able to do it. The real questions are whether it is suitable for the particular case and, critically, whether Parliament has used sufficiently clear words.
The history of the case law in this area is that there has been something of a legal arms race between the courts and Parliament. Parliament says something. The court says, “Are you sure you meant that? Maybe you meant something slightly different.” “Oh no”, says Parliament in the next Act, “We actually did mean that.” “Maybe it’s something else”, says the court. You have a judicial arms race ranging from Anisminic all the way up to Privacy International and culminating, as the noble Lord, Lord Howard, said, in a remarkable—I say with respect—obiter dictum, in the situation that there may be some clauses that the court simply will not enforce. This clause is in the form it is in because jurisprudential history has told us that if Parliament is to have an ouster clause, we need to be clear and precise.
So far as the figures are concerned—the success rate of Cart judicial reviews—the Government’s methodology is clearly set out in Annexe E to the consultation response. We are confident that the 3.4% figure is correct but, frankly, whether it is 0.2%, 3.4% or 5%, the critical point is that this is all very low compared with the 30% to 50% success rate in other types of judicial review.
Far from the sky falling in—the classic phrase, “fiat justicia ruat caelum”—the sky is not falling in here. As the noble and learned Lord, Lord Hope of Craighead, reminded us, we are going back to the recommendation of the Leggatt committee—and for those who did not know the Leggatt in question, that is Leggatt father not Leggatt son—and the idea that Lord Justice Leggatt would have proposed anything that amounted to a denial of justice is frankly fanciful. Therefore, I suggest that the ouster clause is entirely appropriate. My noble friend Lord Trevethin and Oaksey mentioned some of the exceptions to the ouster clause, and I am sure we will come back to that in Committee. There is nothing wrong with an ouster clause in principle and an ouster clause does not involve the Government in an attack on the rule of law. The two things are really quite different.
Before I leave the topic of judicial review, I am caught somewhere between my noble and learned friend Lord Garnier, who praised me for a cool head and a steady hand, and the implication from my noble friend Lord Howard, who urged me to go much further and mount a greater attack on judicial review. The measures in this Bill are sensible and appropriate, but my noble friend cited my colleague Minister Cartlidge in the other place in saying that this Bill is not necessarily the last word on judicial review. No doubt this House and the other place will consider any other measures that the Government may bring forward in due course.
I say in particular, and underline the point, that there is nothing wrong with Parliament acting to reverse particular decisions of the courts. That happens at the moment but we do not really see it because it is contained in Clause 187(3) of the fisheries Bill. Parliament can do it much more expressly. There is nothing wrong in our constitutional system, as the noble Lord, Lord Faulks, said—with Parliament acting to reverse particular court decisions. I am well aware of the Adams decision in principle and the problems that it has caused in Whitehall.
So far as what I may respectfully call the halfway house approach of the noble and learned Lord, Lord Etherton, on Cart, I will reflect on what he said. However, our assessment is that we would save 180 days of judicial time in putting forward our proposals. That is based on the resource expended in the Administrative Court in considering the high volume of Cart judicial review permission applications.
I turn to the criminal court measures. The noble Baroness, Lady Whitaker, asked about defendants who have no access to digital communications. Defendants would need actively to opt into the new online procedures introduced under Clause 3. They could choose at any point prior to accepting the conviction to have their case heard in court instead, including if they did not feel comfortable engaging online.
In response to the noble Lord, Lord Ponsonby of Shulbrede, who asked what happens if people accept a conviction under the automatic online procedure but do not know the consequences. The defendant is provided with all the information necessary to understand what is going on but, as I said in opening the debate, the Criminal Procedure Rules will provide a cooling-off period to allow defendants to change their minds and withdraw their plea on accepting a conviction under the new procedure, and the court will always have the power to set aside the conviction in the event that the defendant simply did not understand the procedure with which he was engaging.
Online justice is important. It does not amount to a denial of justice or justice being done in secret. Indeed, the days of local newspapers sending reporters to sit at the back of the magistrates’ court are long gone. It is far more likely that local newspapers will be able to follow those proceedings if they are broadcast online. That is why last week I introduced a statutory instrument to broadcast the Competition Appeal Tribunal online. I do not necessarily recommend it to your Lordships’ House, unless your Lordships are having trouble getting to sleep. It is a somewhat esoteric—with the greatest of respect to those who practise in it and administer justice. The underlying point is important: all our tribunals and courts should be available because we do justice in public. Online justice can also be public justice.
On the subject of tribunals, the noble and learned Lord, Lord Etherton, raised the proposal of legislating to allow pro bono cost orders to be made in tribunal proceedings. He was kind enough to share a draft of the proposed amendment with me. We support pro bono work as a means of enhancing access to justice for those who need it. We therefore support in principle measures which would allow cost orders to be made in tribunal cases where a party is represented pro bono. We have some concerns about the scope of the amendment because it is very wide—it applies to tribunals outside the unified tribunal structure. But we will certainly work with the Access to Justice Foundation and the noble and learned Lord on the proposed amendment.
Turning to the Online Procedure Rule Committee, I assure the noble and learned Lord, Lord Etherton, that it will work in co-ordination with other committees. Again, online justice can improve access to justice. Let us take a small trader who has a small debt to recover in the county court. Will they give up a day’s work and sit there waiting for their case to be called on in a face-to-face hearing? Perhaps not. Will they tune in, so to speak, to an online hearing, where they can stop where they are working and go on their laptop or iPad for an online hearing for one hour, vindicate their legal rights and get a judgment? Online justice can improve access to justice for those for whom the current justice system provides obstacles.
I do not want to unduly delay the House, but there were a couple of questions on coroners’ proceedings. I am sure we will debate those in Committee. The essential point when it comes to coroners is that we want to reduce unnecessary processes in the coroners’ courts. We want to maintain the distinction between a coroner’s court and other courts. A coroner’s court is inquisitorial, fact-finding, and ought not to be adversarial. We have to bear in mind that what is good for courts normally may not be good for coroners’ courts.
I am grateful to my noble and learned friend Lord Garnier, who welcomed the City of London courthouses. Whether that was a subtle request to be invited to the opening, I am not sure. But, in all seriousness, they will be a very valuable addition to the court estate. We are committed to maintaining London’s position as the pre-eminent dispute resolution city in the world.
Finally, on the territorial extent of the Bill, the point made by the noble and learned Lord, Lord Hope of Craighead, I am grateful to him for engaging with me; we have had a few conversations about this already. At the moment we think that the extent clause of the Bill is correct, but we are in discussions and of course we need to get it right. I assure him that we will continue to discuss that further with him.
Before I sit down, I hope that I too can take a moment to say how wonderful it is to see and hear from the noble Lord, Lord Hacking. In my tradition we have something called a second bar-mitzvah, which happens when you are 83—70 years plus 13. It seems that this House has introduced a similar idea of a second maiden speech 50 years after your first. I am sorry that the hats have gone. I remember full-bottomed wigs in this House, which sometimes usefully doubled as ear muffs. I do not know whether they will come back but I will certainly resist any amendment to the Bill which would seek to introduce them.
I am sure we will have very interesting and important discussions in Committee. I am very grateful to everyone who has contributed this evening but, for the moment, I commend the Bill to your Lordships’ House.
Judicial Review and Courts Bill
Monday 21st February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I(a) Amendments for Committee (Supplementary to the Marshalled List) - (21 Feb 2022)
Lord Wolfson of Tredegar
That the House do now resolve itself into Committee.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I beg to move.
Lord Scriven (LD)
On a point of order, my Lords, questions on a Statement should have been for 15 minutes and not for 10 minutes.
Baroness Penn (Con)
My Lords, a Private Notice Question lasts for 15 minutes; a repeat of an Urgent Question lasts for 10 minutes. I believe we are now in Committee on the Bill.
Lord Pannick
Member’s explanatory statement
The purpose of this amendment, along with amendments to page 1, line 15, and page 2, line 2, in the name of Lord Pannick, is to remove the proposed power for the court to prevent a quashing order from having retrospective effect, thereby validating what would otherwise be quashed as unlawful.
Lord Pannick (CB)
My Lords, the reaction of most of your Lordships to Part 1 of this Bill at Second Reading was summed up in the memorable words of the noble Baroness, Lady Jones of Moulsecoomb, whom I am very pleased to see in her place:
“It is not as bad as I expected”.—[Official Report, 7/2/22; col. 1371.]
Part 1 could certainly have been worse, but that of course is no answer to the amendments that we are now debating.
I declare my interest as a barrister practising in the field of judicial review. My Amendments 1, 4 and 5 in this group are concerned with decisions of the court to quash a public law decision, whether in the form of a statutory instrument, a decision of a Minister or a decision of a local authority or any other public authority.
As your Lordships and the Committee know, when a public body is found to have acted unlawfully, the decision is usually—not always—quashed; that is, overturned. This is an important protection of the rights of the citizen and an important deterrent to unlawful action by public bodies.
Clause 1 gives the court a power to decide that the quashing order should not take effect until a date specified in the order—some later date—and a power to remove or limit any retrospective effect of the quashing. I am not troubled by the court being given a power to decide that the quashing order should take effect at a later date. That power was recommended by the noble Lord, Lord Faulks—who is in his place—and his team in their well-informed and wise conclusions in March 2021 after their independent review of administrative law which the former Lord Chancellor, Sir Robert Buckland, had asked the noble Lord to conduct. The noble Lord, Lord Faulks, explained in particular that there may be cases where the court considers it appropriate to suspend a quashing order to enable Parliament to decide whether it wishes to amend the law. That seems entirely acceptable, because it recognises the supremacy of Parliament in our constitution, so there is no difficulty about that.
What the noble Lord, Lord Faulks, and his committee did not recommend and what my Amendment 1 seeks to remove from this Bill is the power in new Section 29A(1)(b), set out in Clause 1, for the court to remove or limit “any retrospective effect” of a quashing order. New Sections 29A(4) and 29A(5) make clear that this would mean that the decision or policy which the court has found to be unlawful is nevertheless to be “upheld” and
“treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
My Amendments 4 and 5 would remove those provisions.
What the Government are proposing would confer a remarkable power on our courts: a power for the court to say that what has been found to be unlawful shall be treated, and treated for all purposes, as having been lawful. Those adversely affected by the unlawful decision, including the claimant in the judicial review, would receive no remedy. If such a remarkable power is to be exercised, it should not be exercised by judges but by Parliament. Your Lordships will recall that one of the causes of the Civil War was Charles I’s use of a dispensing power. The monarch’s claim to such a power was abolished by the Bill of Rights 1689. I do not think it is wise to re-establish such a power in the hands of Her Majesty’s judiciary.
The decision on whether to validate what a court has found to be unlawful raises all sorts of policy considerations which are not for the judiciary to weigh up and determine. Indeed, to confer such an extraordinary power on our judges is, I suggest, inconsistent with this Government’s repeated expressions of concern that judges have or are exercising too much power. As my colleague at Blackstone Chambers, Tom Hickman QC, has pointed out, for the court to have this power to deny retrospective effect for its ruling and to do so permanently, not even only where the defect is technical, would be for the court to exercise a quasi-legislative power, including a power to override primary legislation —that is, the statutory provision which makes the impugned decision or policy unlawful.
Such a judicial power would undermine one of the key functions of judicial review, which is to encourage government to do its best to ensure that it behaves lawfully because it knows that illegality has consequences. It would deter judicial review applications: why bother to complain that the public body has acted unlawfully if the court may say that what was unlawful shall be treated as lawful? New Section 29A(1)(b) would have the effect—indeed, I suspect it has the intention—of seeking to protect government and other public authorities from the basic consequences of their own unlawful actions. I think that is a matter for Parliament and Parliament alone. I beg to move.
Lord Anderson of Ipswich (CB)
My Lords, I am slightly more relaxed than my noble friend Lord Pannick about the prospective-only quashing power in the new Section 29A(1)(b)—it is, in its essentials, already acknowledged in our law—but only so long as the courts are free to use it without constraint or presumption. In the Spectrum case of 2005, Lord Nicholls thought a prospective-only quashing order might be appropriate in some cases where a decision on an issue of law was unavoidable but a retrospective decision would have gravely unfair and disruptive consequences for past transactions. Each of his six colleagues agreed that it would be unwise to rule out the existence of such exceptional cases, even though Spectrum itself was not one of them.
Lord Beith (LD)
My Lords, this is an area of complexity and difficulty and I think the difficulties are added to by the content of the Bill as the Government have brought it before us. It was not broken and it was not necessary to fix it in this respect. The noble Lord, Lord Anderson, has just explained how the previous use of common-law powers has dealt with this matter perfectly satisfactorily.
I share with the noble Lord, Lord Pannick, the dislike of anything that lessens the clear impact of the threat of judicial review on the public service. I say threat not because I am hostile to members of the public service but because it is a necessary discipline that things must be done within the law and they know that, if they are not, what they are bringing forward could well be nullified in the courts. The severity of judicial review is important to its role as the discipline for the rule of law.
There are, however, cases which do not fit easily into this pattern and which make an element of retrospection attractive. I think of licensing measures of various kinds—measures that render lawful things that would otherwise be unlawful. There are quite a lot of them in the area of game shooting, for example, and one caused quite a stir over the last couple of years: the power to shoot a predator bird if it is likely to enter an area where it would disturb the wildlife in a site of scientific interest which is subject to protection. In a recent example, there was indeed the threat of an action which did not take place in the end but which led Natural England to accept that its regulations were defective.
In those circumstances, you have people who have behaved in good faith and—they thought—lawfully, who, when the court in a judicial review determines that the action is not within the law, are left in a rather difficult position. You may say that nobody is going to prosecute them once it becomes clear that the law had been nullified. The case may already have started. However, in the real world, having been found to have acted unlawfully, even unwittingly, is not a good position to be in and not one that an employee wants to find themselves in. It presents some difficulties which I think Amendment 6, from the noble Lord, Lord Ponsonby of Shulbrede, attempts to address in so far as it affects regulations and delegated legislation. I will be interested to hear him set it out more fully and the Minister’s response to it.
That qualification—that we should remember the interests and concerns of people whose actions could unwittingly be rendered unlawful—is only a limited qualification to what, in my view, is the fundamental reason to object to what the Government are proposing, which is that the full rigour of the effects of judicial review should be something that the public service is always aware of.
Lord Hope of Craighead (CB)
My Lords, I find myself in the same position as my noble friend Lord Anderson and I would like to add just a few words to what he said.
One of the points made in the Explanatory Notes—and I am looking at paragraph 21—is that:
“The diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”
My noble friend Lord Pannick invites us to address subsection (1), read together with subsection (4). If one asks oneself what these provisions are driving at, one has to bear in mind that there is a whole range of diverse circumstances, some of which may affect private individuals very much indeed; in which case, one would be very concerned that their remedies were not being cut out. Other cases deal with administration and circumstances where individuals probably are not affected at all, but the good administration or even the security of the country is very much at stake when a quashing order is made.
I hope I can be forgiven for coming back to the case of HM Treasury v Ahmed in 2010, which I was involved in. I mentioned it at Second Reading and when I was addressing this subject at an earlier stage. It is worth dwelling on that case because it is an illustration of a circumstance where the clauses that are under attack by these amendments could be valuable. It was a case where the Treasury had pronounced an order to give effect to our international obligations under the United Nations Act 1946, designed to freeze the assets of suspected terrorists. That was our international obligation and, understandably, the Treasury made the order. But when the case came before the Supreme Court, it was pointed out that there was no parliamentary authority for such an extreme measure. The Supreme Court unanimously decided that the order should be set aside.
I suggested in the course of the hearing and, indeed, at the end of my speech—the leading speech in the main case—that we should suspend the effect of the order to give time for the Government to remedy the situation in order to avoid the terrorists dissipating their assets. The risk was that the banks that were holding the assets under the order that was under attack would release them under demand from the terrorists. Clearly, that would not be desirable.
I was overruled by six to one for a reason which, I think, demonstrates why these provisions are needed. My noble and learned friend Lord Brown of Eaton-under-Heywood was in the majority of the six against me so perhaps he can explain more fully what their reasoning was. As I understand it, they were saying that if you quash the order you are declaring what the law always was; in other words, the Treasury order was of no effect at all—that was the effect of the order—and, as I think the noble and learned Lord, Lord Phillips, said, it would indeed undermine the effect of the quashing order to suspend it because it would be suspecting that there was something wrong with the decision to quash the order.
I could not understand that and I still cannot understand the sense of it. Indeed, one of the broadsheet papers, having spotted what was going on, asked: has the Supreme Court gone mad? I remember that certain people were rather discomfited by that but it was a very strange thing to do because there was no question of the banks releasing the money. But it was just as well to suspend the order so that they would be comforted by the fact that we were not actually making the order until Parliament had come in and produced a proper remedy to sort it out.
There you are. If you look at subsection (4), the “impugned act” was this order and what I wanted to do was to, in effect, allow the impugned act to be maintained—or, as subsection (4) puts it, “upheld”—so that the matter could be corrected. I cannot see anything objectionable to exercising the power in subsection (1)(b) in a circumstance of that kind. I wish we had had that power available to us at the time. It would have made my life a good deal easier in our discussions. It was not there and any idea that the common law could do that had really been exploded by the decision of the majority.
There is a problem and it would arise time and again if people were looking at the majority decision. There are, or could be, cases where for the protection of the public and in the interests of good administration the possibility of suspending the effect of the order so that the impugned act is regarded as valid until the defect can be corrected will be valuable. I suggest, with great respect to my noble friend, that it would be unwise to remove these provisions from the Bill.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I feel I have to rise at this juncture. I supported Clause 1 at Second Reading and continue to do so today. Like other noble Lords who have spoken since, the noble Lord, Lord Pannick, I suggest, puts the case against the clause altogether too high. I say that Clause 1 and the powers that it confers on the judiciary valuably would add to the judges’ discretion, their powers to do justice not just to the claimant in a particular case but on a wider basis. I, too, was in the Spectrum case—Lord Nicholls’ case with the noble and learned Lord, Lord Hope, and others—and it was not a case in which we thought at that stage and in that context we should exercise this power, assuming we had it, to develop the law.
I am going to disappoint the Committee because I have insufficient recollection—I shall come back to this on Report, I promise or threaten—to deal now with the point from the noble and learned Lord, Lord Hope. But I see the force of what he says and, in a rather different context, I, too, wish to reminisce. I go back even further, a quarter of a century, to a case called Percy v Hall. It was so long ago that Mr Keir Starmer was the second junior with a very white wig. It was a case about by-laws in respect of Menwith Hill, a listening post, a secure station for GCHQ and the Americans, and the by-laws, not surprisingly, precluded public entry.
Baroness Jones of Moulsecoomb (GP)
My Lords, I love these debates with our legal eagles, especially when they disagree. My only reminiscence of a court was when I was in the dock for not paying my poll tax. Being a very respectable housewife, having made a statement, obviously I paid.
I am feeling a little generous toward the Government —perhaps that is just the effect of recess—so I will accept that there could be situations where a court might usefully add constraints to a quashing order that either delay its effect or limit its retrospective effect. However, the way in which the Government have done this in the drafting of Clause 1 is far too prescriptive. Rather than giving courts these options as tools to deploy in the interests of justice and good government, the Government are trying to force them into being the default position.
Obviously, my legal knowledge is zero, but I will try to inject a little politics into all this, because the reason that the Government are bringing this is, as the noble Lord, Lord Paddick, said earlier, that they are trying to stop their own mistakes. It is already difficult for people to bring judicial reviews. They must be brought as soon as possible and within three months of the decision being complained of. This new scheme in Clause 1 would mean that for many judicial review cases, even if a claimant wins, they lose. That does not make any sense.
The Government have approached the whole issue by seeing judicial review as an enemy to good governance rather than as a fundamental part of enforcing good government. Judicial review is a fundamental part of the checks and balances of the UK’s messy constitution, and the idea that public decisions which are either unlawful, irrational, or procedurally unfair should be left to stand is anathema to good governance. If the Government want to lose fewer judicial reviews, they should simply make better decisions. I know that is not easy for them. I have a lot of sympathy, but they are making a mess. If their decisions are lawful, rational, and procedurally fair, then the Government will not lose. That seems obvious to me. They should not be asking Parliament and the courts to validate their unlawful decisions. To do so is to unpick the rule of law and the delicate system of checks and balances, and now the Government seem absolutely determined to push the UK constitution to breaking point.
Of course, the Green Party’s view is that we should have a constitutional convention and produce a clear written constitution which can be understood by everyone. However, until then, we will oppose the Government’s attempt to stop exposure of their bad decisions. I do not understand why this has been put in when it is so clearly an effort by an elected dictatorship to shut people up.
Lord Faulks (Non-Afl)
My Lords, I have the disadvantage of being a lawyer, an interest which I declare, and I was the chairman of the Independent Review of Administrative Law. Our task, as we saw it, was to review whether the balance of our constitution was fairly reflected in particular by the scope of judicial review. We did not make radical suggestions, but one suggestion that we did make—and it was simply a suggestion—was that legislation on what remedies would be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a judicial review case was ruled out by the UK Supreme Court in Ahmed—and of course, there was one noted dissension, from whom we have heard this afternoon, the noble and learned Lord, Lord Hope.
That was our suggestion. We were not prescriptive as to how best that power should be given to the courts, but what seemed important to us was that there should be some flexibility to stop some of the hard edges which can arise with a quashing order. What seems fundamental to the way the Government have framed this clause is the use of “may” on more than one occasion. The judge, when he or she looks at the act which is being impugned, has the power to do various things and to take into account the sort of things that a judge would probably take into account anyway. We suggested that that flexibility would help do justice to claimants and to defendants, and one should not lose sight of either party in these claims. We have heard the relevant quotation from the judgment of Lord Justice Schiemann on how third parties can be affected by these orders—people order their affairs—but, equally, I accept that it is very important that claimants should not have their remedies in any way frustrated by judges taking an overprescriptive view.
In one of the amendments put forward by the noble Lord, Lord Ponsonby, on behalf on the Labour Party, he is concerned, I think, about potential convictions based on something that might be regarded—retrospectively, at least—as invalid. We considered this in the report, and said the following on page 75:
“in the case where a claimant who brings a civil case against a public defendant, and the public defendant seeks to justify its conduct by reference to some rule or decision under which it operated, the ‘metaphysic of nullity’,
referred to by the noble and learned Lord, Lord Brown, at Second Reading,
“allows the claimant to argue that that rule or decision was null and void and cannot provide a defence to his or her claim.”
We were not concerned about this because, as stated in paragraph 3.67, the
“possibility of such collateral challenges could easily be retained under the more flexible approach to the consequences of unlawful administrative action that we favour. The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review.”
So, I understand the concern; I simply do not think it exists in the way the clause is framed.
I am afraid I simply fail to follow why the noble Baroness says this clause is creating an elected dictatorship. It is giving judges a power to do what is appropriate in the particular case. In some ways, it may allow judges to make quashing orders they might have been reluctant to make before, because of the hard edges of a quashing order. As it is, they have sufficient flexibility to tailor the remedy to what is appropriate in the case in order to reflect the balance between the claimant and the defendant. I am disappointed too that the noble Lord on the Labour Front Bench opposes this clause entirely. Some of the rhetoric about the ability or desire to constrain judicial review did not seem to be reflected at all in the way this Bill is framed.
Governments of all colours, from time to time, to some extent resent judicial review. For example, we looked at a great many comments by the Labour Government—even that of the noble Lord, Lord Blunkett, who is no longer in his place—about the inappropriate comments by judges and restrictions on the ability of the Government to govern. There is the example of the Human Rights Act preventing the Government—so they said—from doing what they needed to do to deal with the threat of terrorism. All Governments from time to time find this irksome. Simply to oppose a provision in a Bill because it has the subject of judicial review does not seem to me to be a very scrupulous and sensible way to approach legislation.
Baroness Jones of Moulsecoomb (GP)
Before the noble Lord sits down, may I correct him? I did not say that this clause suggested an elected dictatorship. I am saying that an elected dictatorship is running the country at the moment, and we see that in every single Bill that comes to this House.
Lord Faulks (Non-Afl)
I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.
Lord Falconer of Thoroton (Lab)
My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.
Lord Hope of Craighead (CB)
The noble and learned Lord was kind enough to refer to the case that I was referring to. However, I was suggesting that the court should have power, in effect, to direct that the order made under the United Nations provisions be treated as valid until Parliament could introduce a measure giving authority to the making of the order. That is indeed what happened afterwards; Parliament had to remedy the problem and some time was needed to allow it to do that.
The banks were holding on to the money; of course, they were not going to release it unless it was demanded by these suspected terrorists, but had they demanded it, it might have been quite difficult for the banks to refuse to release some money. My point was that something should be done to prevent that happening. The last thing one wanted was to give these terrorists the opportunity to make off and dissipate all the assets that had been protected by the order made under the international obligation.
The problem that the noble and learned Lord is grappling with is that there is a huge range of circumstances in which these provisions may come into effect, some of which, I quite agree, would be offensive. I would hope that the courts would be sensible enough not to exercise the power. There are various provisions later in the Bill, which we will discuss and which might be better removed to preserve the court’s flexibility. The question is whether the power should be there at all. My point was that, yes, it should be there because there can be cases where the interests of good administration, and possibly national security, require the possibility of doing that to prevent the event—or whatever it was that the defective order was designed to prevent—taking effect.
Lord Falconer of Thoroton (Lab)
New subsection (1)(a) deals with that point. The effect of the order stood until the Supreme Court set it aside, and everybody would accept that that is the position. If the Supreme Court had had new subsection (1)(a)—which it could have—it could have said that the order freezing the money continues for six more months and in six months’ more time it is then quashed. That is my understanding of a (1)(a) order: the quashing order means getting rid of the restraint on dealing with the money and does not take effect until the date specified in the order.
If the Supreme Court had said, “This order stands until six months’ time”, and a bank had then been approached and told, “Excuse me, the terrorists want their money now”, the answer would have been no because there would still, in effect, be a restraining order. It would have dealt with the problem that the noble and learned Lord posits; I think Clause 1(1)(a) would have dealt with it.
Lord Hope of Craighead (CB)
I recommend that the noble and learned Lord refers to Treasury 2 because I made exactly the point that he was trying to make and I was overruled by the others. They said, “You can’t do that”, and they would not make the suspended order. We are in Committee and we cannot prolong the discussion, but that is the problem that I was faced with. I tried to do exactly what the noble and learned Lord suggested but I was overruled. That is the problem that I think the Government are trying to address; the Minister will correct me if I am wrong.
Lord Marks of Henley-on-Thames (LD)
My Lords, I enter this discussion with some trepidation. Nevertheless, it raises very important points of principle, which have been essentially analysed in the last few minutes and the last few exchanges. As we have heard, the effects of Amendments 1, 4 and 5, in my name and those of the noble Lords, Lord Pannick and Lord Ponsonby, would be to remove from the Bill the power to make a quashing order prospective only. That is the problem: it is prospective only. We are not arguing for the removal of the power to delay. I will come back to that in a moment, but I start from the position that I agree entirely with the analysis of the noble and learned Lord, Lord Falconer, that a (1)(a) order could solve all the problems outlined by the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson.
I venture to suggest that it is significant that when the committee chaired by the noble Lord, Lord Faulks, considered its recommendations for this type of order, it recommended only the power to delay, not the power to validate past unlawful action in the way that a quashing order made prospective only would do. Our amendments are premised on the proposition that, when the courts find that an Act, or a decision or regulation of any organ of government, is unlawful, it should not then be able to decide only to quash it with future effect. As the amendment’s explanatory statement puts it, and as the noble Lord, Lord Pannick, explained, the proposed power would thereby validate
“what would otherwise be quashed as unlawful”,
and unlawful for all purposes. The noble and learned Lord, Lord Falconer, emphasised the provisions in proposed new Section 29A(4) and (5) for the all-embracing effect of a prospective-only quashing order.
New subsection (4) makes it absolutely clear that the impugned act—which is ex hypothesi an unlawful act because a quashing order is being made—is to be upheld in any respect in which the provision under new subsection (1)(b) prevents it being quashed. That has no flexibility. If the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope—as well as the noble Lord, Lord Faulks, as referred to in his speech—are seeking flexibility, a (1)(a) order is not the way to do it. Our Amendments 1 and 4 do not seek to debar a court on judicial review from permitting either officials to put right a decision taken unlawfully by remedying the unlawfulness or, as the noble Lord, Lord Pannick, pointed out, Parliament to alter unlawful regulations without the need to wield the blunt instrument of a quashing order immediately.
We suggest that the power to suspend by delaying the quashing order eliminates that risk. It mitigates the risk that a quashing order would have the effect of indiscriminately overruling all government action, for example a regulation, without distinguishing between what was lawful, or ought to be lawful, and what was unlawful. We say that enabling a decision to take effect on a delayed basis would enable the law or the government action to be corrected so as to regularise the unlawful government action. So, the quashing order, if it took effect immediately, would be senseless, but it must stand once the delay is over, to deal with the past unlawfulness. It deals with the Ahmed point, as suggested by the noble and learned Lord, Lord Falconer, and it is a far cry from the courts permitting past unlawful action to go uncorrected.
The prospective-only quashing order power undermines the central principle on which judicial review jurisdiction is based: government action is required to be in accordance with law, and if it is not in accordance with law, it will be corrected. The noble Baroness, Lady Jones of Moulsecoomb, sensibly conceded in her speech that there may be conditions or limits but they can all be dealt with by the power to delay. A crucial point that a prospective-only order ignores is that “corrected” means corrected for everyone; that is, all litigants, future and potential, even those who have not yet brought cases.
Lord Faulks (Non-Afl)
I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?
Lord Marks of Henley-on-Thames (LD)
It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.
The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.
I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.
Amendment 6 would, as set out in the explanatory statement,
“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”
The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.
My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.
That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.
Lord Wolfson of Tredegar (Con)
My Lords, the previous two contributors to the debate noted that they spoke on these matters with some trepidation. In responding to the amendments in this group, I declare a non-interest: unlike so many of your Lordships, I confess that I did not sit on, or even appear in, any of the various cases cited to the Committee. Therefore, with that significant handicap, I will instead start by reminding the Committee of the rationale for including Clause 1 in the Bill. However, in these remarks I will not address the list of factors in subsection (8), or the so-called presumption in subsection (9), because we will deal with those in later groups.
The clause aims to expand the remedies available in judicial review proceedings to provide more flexibility to the courts. As I put it at Second Reading, we want to put another couple of remedial tools into the judicial toolbox so that they can be used when appropriate. I say to the noble Baroness, Lady Jones of Moulsecoomb, that this has nothing to do with dismantling judicial review or an elective dictatorship. The Government and I recognise the importance of judicial review to good government, which is lawful government. But one also has to recognise that, as the noble and learned Lord, Lord Hope of Craighead, reminded us, we have lots of different sorts of cases where we want flexibility of remedy—and that judicial review applies to many decision-makers who cannot sensibly be described as “government” in the way that the noble Baroness was using that word.
The current position is that quashing is typically both immediate and retrospective, depriving the decision of ever having had legal effect. It is as if the decision had never been made; it is a legal nullity. This makes a quashing order something of a blunt instrument, and it can have unintended consequences when applied to nuanced problems.
The clause seeks to give the court a discretion to change quashing orders in two ways, as we have heard. The first is to allow the effects of a quashing order to be suspended for a period, as the court sees fit. The Independent Review of Administrative Law—I listened very carefully to the contribution of its chair, the noble Lord, Lord Faulks—recommended this additional remedial flexibility, and the clause therefore seeks to implement its recommendation. I agree with the noble Lord that the word “may” is critical to the way that this clause operates. The suspended quashing order allows courts to suspend the effect of an order for a period of time to allow the decision-maker to prepare for the effect of the quashing. This could give them time lawfully to make a new decision before the unlawful decision is quashed or to implement some other transitional arrangements.
The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, which aims to remove the whole clause, would remove this new remedy, which I had thought was broadly supported. Although I heard the noble and learned Lord, Lord Falconer of Thoroton, say, “If the judges want this power, they can create it”, we have heard that it is far from clear, to put it at its lowest, that the common law would actually enable the judges to do this. More importantly, there are circumstances where suspending a quashing order will allow the court to provide a remedy that better serves the interests of justice, and we should therefore ensure that it is a tool available to the courts.
The second modification, which would be removed by Amendment 1 and the consequential Amendments 4 and 5 in the name of the noble Lord, Lord Pannick, is the ability to make a quashing order prospective only. I accept that that has been more controversial in the Committee this evening, so I will set out some of the parameters of the debate, as the Government see it.
We have heard examples from those in the other place, and indeed from some noble Lords this evening, where, prima facie, a prospective quashing order could cause significant injustice to the claimant, the applicant or third parties. There will be cases where a prospective quashing order could cause injustice, which is why we are not forcing the courts to use the powers in any case where it would cause injustice or, indeed, be inappropriate. Therefore, I suggest that we leave those discussions aside, because there is remedial flexibility, and concentrate on whether prospective orders make sense in principle, given the wide variety of cases that come before the courts. We could therefore answer the question: are there cases in which their use could be appropriate?
Lord Falconer of Thoroton (Lab)
If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?
Lord Wolfson of Tredegar (Con)
If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.
Lord Falconer of Thoroton (Lab)
I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.
Lord Wolfson of Tredegar (Con)
I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to
“any other matter that appears to the court to be relevant.”
It also has to look at where subsection (9) says
“unless it sees good reason not to do so.”
The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.
I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.
So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.
That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.
We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.
His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.
Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.
We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.
There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.
In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.
I also emphasise the points in subsection (8)(c), which ask the court to have regard to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.
I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.
Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.
Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.
Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)
“the interests or expectations of persons who would benefit from the quashing of the impugned act”
and, in subsection (8)(f),
“any other matter that appears to the court to be relevant”.
That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.
In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.
Lord Pannick (CB)
I am very grateful to the Minister and to all those who have spoken in this interesting debate. It is important to emphasise that this is not a technical legal issue. We are concerned here about the integrity of judicial review—a vital safeguard of the rights of all citizens.
I agree with the noble and learned Lord, Lord Falconer of Thoroton, that what is objectionable about Clause 1 is the power of judges to wave a judicial wand and to say that what they have found to be unlawful shall be treated—the word emphasised by the Minister—as if it were lawful.
If there are cases of concern—the noble and learned Lord, Lord Hope, said that there are or may be—a suspended order is quite sufficient to give Parliament time to act. Those in Parliament, not judges, are the appropriate people to validate that which the court has found to be unlawful. New Section 29A(1)(a) meets that need. Indeed, that was the issue in the Ahmed case, where the noble and learned Lords, Lord Hope and Lord Brown of Eaton-under-Heywood, had, as judges say, the misfortune to disagree with each other. It was what the noble Lord, Lord Faulks, recommended in his review.
My noble friend Lord Anderson mentioned the comments of Lord Nicholls for the Appellate Committee in the Spectrum case that prospective overruling might—I emphasise “might”—be appropriate, although not in that case. That was in June 2005. Such a power has never been exercised or come close to being exercised in any case since.
There is an important difference between the common law not ruling out the possibility of prospective overruling and Parliament including such a power in this Bill. I cannot understand why this provision is in the Bill. As I said, it was not recommended by the noble Lord, Lord Faulks. What has provoked the need for new Section 29A(1)(b)? The Minister said that the Government want to put new tools in the judicial toolbox—but why this tool? What case has provoked the need for this provision? When have judges ever lamented the absence of such a power?
My noble and learned friend Lord Brown of Eaton-under-Heywood emphasised the need for flexibility, but Clause 1 is not flexible in an important respect. If this power in new Section 29A(1)(b) is exercised, then under new Section 29A(5), as the Committee has heard, the impugned act
“is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
There is nothing flexible about that. With all due respect, the Minister’s reliance on “treated” is a matter of pure semantics; “for all purposes” means always and for all persons, whatever their circumstances, and even though they have not been represented before the court.
Therefore, I say to the Committee that there is no need for this power in new Section 29A(1)(b). It is inappropriate in principle. But for today, of course I beg leave to withdraw this amendment.
Lord Anderson of Ipswich (CB)
My noble friend just said that no case has come close to applying a prospective-only quashing order since a unanimous House of Lords said in the Spectrum case that they could imagine such cases. How does he explain the British Academy of Songwriters case, which he has heard both the Minister and I develop, and in which Mr Justice Green, as I read his judgment, gave precisely such an order? I should say that that is not the only case.
Lord Pannick (CB)
If he gave such an order, why is there a need for Parliament to step in and deal with the matter? In any event, such an order is more appropriately dealt with by a suspended quashing order so that Parliament, the appropriate authority, can deal with the matter if it sees fit to do so.
The Deputy Chairman of Committees (Lord Lexden) (Con)
Amendment 2, not moved?
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will speak to my various amendments quite briefly, because while the detail of the amendments has not been covered, the overall debate around quashing orders has.
Amendment 2 seeks to limit the use of any new remedies issued under Clause 1 to where, in the court’s view, it is in the interests of justice.
Amendment 7 clarifies that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.
Amendment 8 removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 9 would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.
Amendment 10 would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 11 would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken. Such actions are too uncertain to form a basis for suspending a quashing order or making it prospective only. Any intentions indicated to the court could change in light of subsequent developments, leaving those affected potentially without any recourse.
The intention behind Amendment 12 is to clarify that the principle of good administration includes the need for administration to be lawful. The Executive and all public bodies are not entitled to act unlawfully. Therefore, in a society based on the rule of law, administration may rationally be categorised as fully good only when it is lawful.
Amendment 15 removes the extra weight which would otherwise be given to subsection (8)(e) by the courts when applying the test created in subsection (9)(b) to establish whether the statutory presumption is applicable.
This range of amendments looks at other aspects of Clause 1. I think we had a wide-ranging debate about Clause 1 in the first group, and I beg to move Amendment 2.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.
Baroness Chakrabarti (Lab)
My Lords, I will take the opportunity to jump in briefly at this stage, even though the first three groups to some extent cover similar territory. I know that in the next group we will get into the presumption in particular.
I speak now having had the considerable benefit of listening to the debate on the first group, which the Minister described as being about just giving an extra tool to the judicial toolbox, to be used where appropriate. I think that was the thrust of his remarks. That begs the question of whether it is just a tool in the box and what is and is not appropriate.
It seems that we are dealing with a judicial review of administrative action—of executive action. I know that the Minister said, “Calm down, dears, it’s not all about government as we would understand it; it is about all sorts of administrative action”. I am sure that is right. However, the principle is the same. This is executive action. Some of it is very significant for citizens’ lives and some of it less so. However, it is the job of the judiciary and Parliament, together in different ways, to hold executive action to account.
The traditional method has worked rather well. There are discretionary remedies for the judiciary and the power to legislate for Parliament, including, in extremis, to legislate retroactively. We do not like that, but if anybody is going to do it, it should be Parliament, because it is sovereign and has the democratic legitimacy to do so. That is the debate between my noble and learned friend Lord Falconer of Thornton and the noble Lord, Lord Pannick, on one side, and the Minister and his supporters on the other.
To that, I think the response comes from the Minister, “Actually, the new Section 29A(1)(b) is not doing what you think it’s going to do. This is just remedies; it is not about rewriting history and saying that the unlawful decision or subordinate legislation was always lawful. It is just about the effect of the quashing, not about changing history”. If that is the genuine intention of the Government with this provision, I respectfully suggest to the Minister that some clarification and comfort other than reassurances from the Dispatch Box may be required. That is to deal with the fact that we are not actually giving a retroactive legislative power —let alone duty, to which we will come—to the court.
Maybe, if I can be helpful, there is some room for explicit clarification to that effect. Having listened to the previous group, I too do not see the point of new Section 29A(1)(b) if this is just about giving extra tools to the judicial toolbox to use where appropriate. In all this I am mostly worried about the people not in the courtroom—the people who are not the litigants in the particular case but who rely on that particular judicial review, brought by one individual or a small group of individuals who had the means, either because they had personal means or the benefit of legal aid, which is not widely available these days. I am worried about anything that would shut out the possibility of good administration being provided for all the people—there could be hundreds or thousands or millions—who were not in the room and could then be shut out from justice because of something that it was not appropriate for the court to do. Why? The courts, unlike Parliament, are not best suited to polycentric decision-making. If there is to be emergency legislation because of a particular decision around illegality of regulations and so on, it is better dealt with in Parliament because Parliament will be able to look at all the potential cases in the round and will have the legitimacy to so act. The Government cannot have it both ways.
By the way, I agree with the noble Lord, Lord Faulks: Governments of all stripes get irritated with judicial review from time to time. However, whoever is in power, it is not for politicians to have it both ways and criticise judicial overreach on the one hand but then ask the judges to do their dirty work for them when they have been found to act unlawfully on the other.
Baroness Jones of Moulsecoomb (GP)
I do not see this as a tool in the toolbox but as opening up a nest of snakes. When you use the phrase
“unless it sees good reason not to do so”,
it opens up some real complexity if people start to make further appeals on the basis that there was good reason not to do so or good reason to do so. I do not see that this is any sort of simplification. The Government will probably regret opening this system of quashing because it will add complications when the Government presumably want it to run more smoothly. I cannot see that there is any point to this. I hope that all those legal eagles over there will start circling round our little legal lamb here and explain to him that he has got this completely wrong.
Lord Falconer of Thoroton (Lab)
These are important amendments. They address the botched way that, if these powers are to come in, the exercise of discretion is to be applied. My noble friend Lord Ponsonby is saying that you would use what the noble Lord, Lord Wolfson, describes as the tools in the toolbox only if it is “in the interests of justice to do so”. That is the starting point. That sounds to me a lot more sensible a starting point than the very strange wording in new subsection (9), which is, if the court is to make a quashing order in accordance with new Section 29A(1),
“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so”,
and the condition is that
“as a matter of substance”
an order under new subsection (1) would
“offer adequate redress in relation to the relevant defect”.
Obviously, there is a difference between adequate redress on the one hand and what is the best order in the interests of justice overall on the other. Can the noble Lord tell us why this strange wording has been adopted if all that is intended is the broadest possible discretion in relation to using these two new tools in the toolbox?
My noble friend Lord Ponsonby’s amendments also relate to new Section 29A(8). The Minister said, in reference to prosecutions and taxation, that you would never make a new subsection (1) order, whether a delayed quashing order or prospective only one, and that is clear, he says, from new subsection (8). He relied in particular on new subsection (8)(c), which refers to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
If I have been prosecuted under a regulation that was unlawful, I would expect my prosecution to be upheld. But then, new subsection (8)(d), refers to
“the interests or expectations of persons who have relied on the impugned act”.
Therefore, if, for example, it is made unlawful to do a particular thing and I have had my dog put down as a result or I have bought lots of expensive equipment to comply with the criminal law as I thought it was, my interests or expectations under new subsection (8)(d) would be “Let the law stand”. So new subsection (8)(c) points in one direction and new subsection (8)(d) in another. If it is the Government’s intention that all prosecutions brought under unlawful regulations or laws will never be prospective only, and if it is their intention that taxation raised under unlawful regulations will never be prospective only, in my respectful opinion—I may be wrong, in which case let me corrected by the noble Lord, Lord Wolfson—new subsection (8) does not get him anywhere near that. Indeed, it leaves the judge to decide and the judge has to decide on the basis of new subsection (9).
I therefore strongly agree with my noble friend Lady Chakrabarti. A bit more work needs to go into this to get to a point where there is clarity about what the Government intend, if their intention is that these are only two tools in the toolbox, with complete discretion over how to use them. If that is what they want, my noble friend Lord Ponsonby’s amendments are giving them quite a good opportunity of getting there.
Lord Brown of Eaton-under-Heywood (CB)
I hesitate, my Lords, to speak again. I feel that so much of what has been said has been dancing on the head of a pin. I have to say that I have come to see new subsections (1)(a) and (1)(b) in new Section 29A in Clause 1 not as dramatically different things but rather as a continuum. They cover a spectrum; indeed, there is an overlap in between them, in the middle. There is no question here of subsection (5), to which the noble Lord, Lord Pannick, objects so strenuously—the one about being treated, and so forth. It is always subject, be it noted, to new subsection (2) of new Section 29A. Any of these orders under new subsection (1)—in other words, whether it is an order under new subsection (1)(a) or (1)(b)—can be made subject to conditions. Those conditions clearly would control the extent to which there is to be any degree of retrospectivity or retroactivity, call it what one will.
I am a huge admirer and respecter of the noble Baroness, Lady Chakrabarti, but I do not see this as being, so to speak, comparable to Parliament infinitely rarely passing legislation retroactively. We must always remember, must we not, that judicial review is, at the end of the day, a discretionary remedy; you do not actually have to make these orders anyway. I still see this, as the Minister would urge, as a tool in our toolbox, giving us the maximum flexibility and discretion to do what justice requires to all—which includes, of course, to those who are not in the courtroom, who do not have legal aid, and all the rest of it. With criminal convictions—taxation and things—one trusts and assumes that the court is going to behave correctly. In the Percy and Hall case, with the good lady trespasser and PC Hall who was being sued for damages for having arrested people who on the face of it were invading this territory, contrary to apparently valid by-laws, I pointed out in the judgment that, if and insofar as she had actually had criminal convictions, of course they would be set aside. But that is merely an aspect of judges behaving, as one hopes and believes they will, in a judicial manner.
So I respectfully continue to support this clause. I said at Second Reading that I was agnostic or entirely relaxed—I think that was the term used by the noble Lord, Lord Anderson—as to whether it is “may” or “must” in new subsection (9), and I remain so. “Must” simply urges the judges to give attention to this new tool in their armoury or toolbox. But they do not have to, and they will not, unless by all the conditions that they wanted to impose, they have made it clear that what they are doing will not be contrary to justice.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group of amendments, tabled by the noble Lord, Lord Ponsonby, is designed to take the sting out of the provisions in Clause 1, both as to the circumstances on which suspended or prospective-only quashing orders may be made and as to the way in which the discretion should be exercised. If passed, the amendments would each mitigate the damage which in my view is inflicted on the rule of law inherent in Clause 1. However, if all were passed, they would still by no means eliminate it. As has been pointed out, the worst part of Clause 1—in a sense, the elephant in the room of the first two groups—is the presumption, which we shall come to in the next group, which has been spoken to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble and learned Lord, Lord Falconer, and which is, I suspect, opposed by the overwhelming majority of those who have spoken. The noble Lord, Lord Anderson, spoke to it in the last group, and said that his support for the prospective quashing-order power was conditional on the removal of the presumption.
I suggest that there is also a flavour to Clause 1 that is inherently offensive. We are faced with a proposal that not only permits the suspension of a quashing order and the retrospective validation of unlawful acts—and we accept the power of suspension—but dictates to the court, by new subsections (8), (9) and (10), how the court should exercise its discretion. Once again, I have to say that I am impressed but dubious about the optimism expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Government are concerned only to give judges tools in their toolbox which they would not use, and that they can exercise their discretion in any way that they wish, because that is not actually how these new subsections work—and they are wrong in principle to dictate the way in which the discretion is exercised. The court when considering judicial review—
Lord Faulks (Non-Afl)
I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to
“any other matter that appears to the court to be relevant.”
So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?
Lord Marks of Henley-on-Thames (LD)
It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.
The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.
Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.
Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.
Lord Wolfson of Tredegar (Con)
My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.
Lord Falconer of Thoroton (Lab)
Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?
Lord Wolfson of Tredegar (Con)
Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,
“unless it sees good reason not to do so.”
Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.
The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?
Lord Wolfson of Tredegar (Con)
First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.
Lord Pannick (CB)
I am very grateful to the Minister. He emphasises that the court can have regard to other factors. Does he accept that it would be permissible for the court to ask itself the question set out in Amendment 2? Is it satisfied that it is in the interests of justice to make one of these orders? Is it permissible for the court to say that it would not be in the interests of justice in the circumstances of this case, therefore it will not make one of these orders?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord. I was going to come to interests of justice slightly later, but let me take the point now. I do not want to drift into the presumption, but these issues are related to an extent. If it is not in the interests of justice to make the order, there would be good reason not to do so in new subsection (9). Therefore, the noble Lord’s question answers itself.
Amendments 2 and 9 add further factors to the list, including a condition that the court may use the new remedies only where it is satisfied that their use will be in the interests of justice. In addition to the point I have just made to the noble Lord, Lord Pannick—perhaps I am putting his question in reverse—I struggle to foresee a situation where the court, having considered new subsection (8) and the presumption, would think it appropriate to apply one of the new powers where the court none the less considered it against the interests of justice to do so. Indeed, I am making the same point: you do not get there, because if it is against the interests of justice, there must be “good reason” not to use one of the orders.
Furthermore, coming back to the amendments, if timeliness is relevant to the case, the court can consider that under the current drafting, in particular the factors set out in new paragraphs (c) and (f).
Those amendments sought to add some factors. Amendments 8 and 11 seek to remove a factor from the list and remove an important provision—the need for the court to consider
“any detriment to good administration that would result from exercising or failing to exercise the power”
and the need for the court to consider actions that a public body proposes or intends to take but has not yet taken. The point of clearly specifying that the court should have regard, not only to actions taken but to actions proposed to be taken, is that actions a public body proposes to take could sometimes be a relevant factor. For example, let us say that a government department recognises that regulations may be quashed but has already stated its intention to make new regulations and has announced the date by which they will be in force. This could help a court to reach a decision on whether a suspended quashing order is appropriate in principle and to determine how long the suspension period should be.
Amendment 10 seeks to modify the fourth criterion, paragraph (d), making it so that the defendant is responsible for identifying the interests of those who rely on legislation being quashed. I suggest this amendment is unnecessary. If a suspended quashing order, or a quashing order with limited retrospective effect or none, might be appropriate, it will always be in the interests of the defendant to set out why that is the case. The defendant would want to encourage the court to use that remedy rather than the ab initio quashing order. So, in effect, the onus is already on the defendant or respondent to demonstrate who will be affected if the impugned act is quashed immediately, ab initio; and that would obviously include identifying who has relied or is relying on the impugned act.
Amendment 12 seeks to modify the same factor in paragraph (d) by providing that the principle of good administration includes the need for administration to be lawful. I think I said in the previous group that that really is, if I may say so, motherhood and apple pie. Good administration is lawful administration. We all expect our Government and all decision-makers to abide by a set of lawful principles and duties that are conducive to effective administration. I am therefore not persuaded that legislating to say that good administration is lawful administration adds anything that is not already obvious or, indeed, inherent in the drafting.
Amendment 15 seeks to remove the requirement in subsection (10) for the court to take “particular” account of any action taken or proposed to be taken, or any undertaking given by a person with responsibility, in connection with the impugned act. This is intended to draw the court’s attention to any response the defendant may have already provided, or be in the process of providing, to the relevant defect. We see this subsection as a positive measure which could encourage a defendant to consider how to resolve matters proactively by offering suitable redress where it is appropriate, before the court need order it. It is also aimed at ensuring that the court takes particular care in considering any redress already provided so that defendants do not feel that they have to provide redress twice.
Finally, I come back to the point I was making about tax. I think the noble and learned Lord, Lord Falconer of Thoroton, asked me whether I was satisfied with the phrase “offer adequate redress”. I certainly am satisfied with that phrase, and I think the noble Lord, Lord Anderson of Ipswich, has an amendment in the next group that focuses on it. He certainly raised it at Second Reading, and I will be coming back to that. When I was referring to tax in the previous group, I was saying it would be very unlikely that a court would want to use a prospective remedy in that situation. I did not say “never” for two reasons. First, it is always up to the judge in any particular case. Secondly, one has to consider other effects even in tax cases. There could be cases where, for example, under tax legislation, somebody has not paid, but they have been given a refund, or they have a rebate or a tax credit. In those situations, it may be right, if it is positive to the taxpayer, so to speak, to use a prospective remedy even in tax cases. That is why I do not say “never” but in the case the noble and learned Lord was putting in the previous group, of when people have paid, in no circumstances does it seem likely that a prospective remedy would be appropriate.
I hope I have dealt with all the points raised. For the reasons I have set out, I invite the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. As my noble and learned friend Lord Falconer said, this suite of amendments was really an attempt to get clarity. Some of them were probing amendments, and some we may return to at a later stage. As my noble and learned friend said, there are potential conflicts, and he gave the example of that between subsection (8)(c) and (d). Those two elements would need to be considered within the broader context of the whole of subsection (8).
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or retrospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.
Lord Anderson of Ipswich (CB)
My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it.
Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them.
Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters.
The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice.
Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result.
The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is
“ultimately up to the judge to decide”
whether to take out the tools provided by Clause 1, that
“this does not limit the flexibility of the court”,
and that subsections (8) and (9) are simply
“there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.”—[Official Report, 7/2/22; col. 1380.]
Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure.
Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge.
Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court.
However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.
Lord Beith (LD)
My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,
“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”
It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.
I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—
“offer adequate redress in relation to the relevant defect”—
worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those
“who would benefit from the quashing of the impugned act”
and those who had expectations and
“relied on the impugned act”.
There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.
Lord Etherton (CB)
My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice.
It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f)
“any other matter that appears to the court to be relevant.”
There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1).
As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would
“as a matter of substance, offer adequate redress”,
because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, “What on earth is the point of it all?” since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical.
I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed.
Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would
“as a matter of substance, offer adequate redress”
is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.
Lord Pannick (CB)
My Lords, I agree with those who have spoken, and particularly with the noble and learned Lord, Lord Etherton, who said that these provisions will provoke litigation. Speaking as counsel practising in judicial review, these provisions will give ample opportunity for those representing disappointed litigants to bring appeal proceedings based on failures by judges to apply the provisions in a proper way.
I have added my name to Amendment 13, moved by the noble Lord, Lord Anderson, because, if judges are to be given the powers set out in proposed new Clause 29A(1)(a) and (b), it is because Parliament has decided that judges can be trusted to exercise the new functions widely and justly. The Minister emphasised at Second Reading and again today that the exercise of the new powers should cause Parliament no concern because it will be for judges to decide. If Parliament follows that approach, it is then surely unnecessary and inappropriate for Ministers to seek to tilt the balance by creating presumptions to try to influence the judges as to which tools from the toolbox—to use the Minister’s expression—it is appropriate for them to pull out and use. The more the Minister seeks to suggest—as I think he will in replying to this debate—that the presumption is weak, the less clear it is why it is included at all.
I make one other general point. We are considering an important Bill and the amendments we are debating this evening are significant. The Minister, as always, is addressing all relevant points in a most constructive and helpful manner, but it is, at least to me, surprising and regrettable that there are now, and have been for almost all of our debate this afternoon, no noble Lords on the government Back Benches.
Lord Hope of Craighead (CB)
I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.
This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.
Lord Faulks (Non-Afl)
My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.
The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.
After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.
I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.
Baroness Chakrabarti (Lab)
My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.
My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.
So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?
On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.
I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.
Lord Thomas of Cwmgiedd (CB)
My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.
That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).
Lord Faulks (Non-Afl)
Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.
Lord Falconer of Thoroton (Lab)
I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.
Lord Judge (CB)
My Lords, I had no intention of intervening in this debate, but the question that seems to arise is this: why are we giving a presumption which is in favour of the wrongdoer?
Lord Marks of Henley-on-Thames (LD)
My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.
The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.
I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.
The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.
My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.
The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.
I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.
So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.
Lord Wolfson of Tredegar (Con)
My Lords, I begin by responding to the noble Lord, Lord Pannick, to whom I am grateful for his characteristically kind words and his tender concern that I am replying to these matters not so much on my own and without a Leader as on my own and without any juniors. That is, I am without much support from those Peers who also take the Government Whip. I would not want to make this point publicly, but in the undoubted privacy of these discussions I can perhaps venture the suggestion that the undoubted attraction of a debate with the noble Lord, Lord Pannick, and others, about the finer points of judicial review might possibly have failed to outshine the annual dinner—which has now been awaited for a couple of years—of the Association of Conservative Peers. But that is mere speculation.
More substantively, let me turn to Amendments 13 and 14. These amendments seek to remove subsections (9) and (10), which have come to be known as the presumption, but I stand by calling it a so-called, or low-level, presumption, for reasons that I will set out. As I explained in answer to the question put to me in the previous group by the noble Lord, Lord Pannick, if the court regards there as being good reason not to apply either of the new remedies, then it does not have to; the presumption essentially falls away. The question then put to me, which I will come to, is: why have it in the first place? That is the either/or which a number of contributors have put to me this evening.
The aim, as I have said in previous groups, of Clause 1 is to aid good administration and provide greater flexibility to the court in giving remedies. The new remedies are a very useful addition to the courts’ toolbox —to use that metaphor again—and the presumption, we believe, allows the courts to consider their use and will make sure that a body of case law develops quickly around the appropriate use of new remedies.
The policy intention, therefore, behind the inclusion of the presumption is to encourage judges to use the new remedies where appropriate, and for that I really do make no apology. I do not see that as any fetter on judicial discretion or as the Government intruding into places where they should not be. The independent review, as we have heard, recommended that courts should be given a statutory power to make suspended quashing orders, as it thought that they would be beneficial if used appropriately. We believe that the suspended quashing order and the prospective order are useful additions, but they can only be beneficial to the jurisprudence if the court considers their use.
The presumption is therefore phrased in a way which encourages the court to consider their use, but we are not trying to fetter judicial discretion or to steer—I think that was the word used by the noble Lord, Lord Anderson of Ipswich—the courts to a particular decision. As now, it will remain very much up to the court to decide what remedy is appropriate in the individual circumstances of the particular case.
Lord Beith (LD)
On the basis of what the Minister has just argued, do I understand the Government’s position to be that unless this presumption is included, insufficient use will be made of these provisions and case law will not develop appropriately? Is that the Government’s position?
Lord Wolfson of Tredegar (Con)
The Government’s position is that the presumption will enable the case law to develop more quickly, perhaps, than it might otherwise do, because in each case the court will consider whether these remedies are appropriate. But there will be no case in which the remedy is provided where the court sees a good reason not to do so. In other words, we will not be in the position of Ahmed; that was the opposite. That was where at least some members of the court—in fact, the majority—wanted to do something and could not. We are not—I underline “not”—putting the court in a position where it will say, “We have to do this. We really don’t want to, but we have to”. You simply do not get there under subsections (9) and (10).
Lord Falconer of Thoroton (Lab)
Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.
Lord Wolfson of Tredegar (Con)
There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.
I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.
Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.
Lord Judge (CB)
Why is the interests of justice test not quite sufficient for your purposes?
Lord Wolfson of Tredegar (Con)
I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.
If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.
Baroness Chakrabarti (Lab)
Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.
Lord Wolfson of Tredegar (Con)
With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?
As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.
Lord Falconer of Thoroton (Lab)
That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?
Lord Wolfson of Tredegar (Con)
We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.
Lord Wolfson of Tredegar (Con)
The position would still be that proper case management can deal with all of this. The point that the noble and learned Lord makes is no different from the proposition that could apply now. You could have two judicial reviews where one court decides to give a quashing order and the other does not. That point is already out there, so to speak. There is nothing new conceptually added by this Bill.
Lord Pannick (CB)
I am grateful to the Minister for giving way. He expresses the hope that these provisions will enable the judiciary to build up a body of precedent in this area. Can he direct the Committee to any other statutory context which sets out in the way we see here a list of factors that judges are obliged to take into account, and then directs them by way of a presumption as to how discretion should be exercised? I cannot think of any. While I am on my feet, I thank him for being here tonight to deal with these amendments and giving up what would otherwise, I am sure, be an important date in his diary.
Lord Wolfson of Tredegar (Con)
I know that my right honourable friend the Prime Minister is still recovering from my absence from the dinner, but I am sure he will provide the usual entertainment and speech that my colleagues would expect.
On the wording of the new clause, there are two separate points. First: do we have statutes with presumptions? Well, of course we do. Secondly, do we have statutes which set out a list of factors to which the court must have regard on either an exhaustive—rare, I think—or, much more commonly, non-exhaustive basis? Yes, of course we do. My noble friend Lord Faulks gave the example of the Limitation Act—in Section 33, I think, from memory. The noble Lord’s real question is, therefore, do we have an instance where those two are put together? There is a short answer and a longer one. The short answer is that I cannot think of one off the top of my head, but I will have a look. The longer answer, however, is, with great respect: so what? If a presumption is not objectionable in itself, and if a list of factors on a non-exhaustive basis is not objectionable in itself, what, I ask rhetorically, makes it objectionable when those two features are put together? There is nothing objectionable about it.
I suggest that the real point put to me is not that this is objectionable, wrong or sinister, but that it is unnecessary. The answer to that is that it is beneficial for two reasons. First, to repeat the point, the court’s considering these powers will encourage the growth of the jurisprudence. Secondly, as I said to the noble and learned Lord, Lord Judge, the fact that the court has to consider them means that they will be considered in all cases, because there may well be cases where it is not in the interests of the party to the case that they be used, but it could be in the interest of third parties.
That ties into the point I was coming to on Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. I heard what she said—that she would prefer the other amendment but tabled this one on a probing basis—but let me respond to it. In addition to removing the presumption, it would replace it with a precondition that, before exercising the new remedial powers, the court must be satisfied that the modified quashing order would offer an effective remedy to the claimant and any other person materially affected by the impugned act. This proposed precondition is superfluous, because the remedies available in the Bill are more effective and tailored, taking into account the interests of both claimant and third parties. The problem with the wording of her amendment is, as the noble Lord, Lord Anderson, pointed out, the copyright case. The wording used is not very good for third parties.
However, in that context, I should pick up a point made by the noble Baroness and by the noble Lords, Lord Marks and Lord Beith, concerning the phrase “adequate redress”, which was first made by the noble Lord, Lord Anderson of Ipswich, at Second Reading, if I remember correctly. We have heard the argument that we should replace that phrase with the phrase “effective remedy”, as also used in Amendment 14. I said in my closing speech at Second Reading, in response to the noble Lord, Lord Anderson, that I would reflect on this point with officials, and, of course, we have. I hope I can take a moment to explain the rationale behind the drafting.
Baroness Chakrabarti (Lab)
I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.
So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.
Lord Wolfson of Tredegar (Con)
I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.
There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.
The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.
I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.
Lord Anderson of Ipswich (CB)
I thank all noble Lords who have contributed to this notable debate—notable not just for its quality but for the rare and even forceful unanimity that it evoked among nearly all lawyers who spoke. I exempt, of course, the Minister, who was paid, or possibly not paid, for taking the opposing view.
I thought that the noble and learned Lord, Lord Etherton, put it most pithily when he said that the presumption was unnecessary, wrong in principle and potentially dangerous in practice. He was swiftly outdone by the noble and learned Lord, Lord Judge, who, if I may say so, correctly described it as a presumption on favour of the wrongdoer—the person against whom a quashing order is to be made. Even the noble Lord, Lord Faulks, who attempted a characteristically fair-minded defence of the presumption, confessed that he was not persuaded that it was necessary.
Of its necessity, I was not persuaded by the Minister in his speech. He still seemed unsure whether it is a presumption at all—but if it is not a presumption, what on earth is it, save for a sort of fertiliser for, as he put it, encouraging the growth of jurisprudence, which I think we are all agreed it would be? I hope that the Minister is right that “adequate redress” is broader than “effective remedy”, but, sadly, neither his words, or still less mine, are any substitute for the authoritative judicial ruling that would no doubt take great time and effort to achieve. These subsections are not something that we should have in this Bill, and they would be a damaging precedent for other Bills.
Finally, we are in the extraordinarily privileged position in this Committee to hear from very senior judges whose lives have been devoted to the interpretation of such laws what the practical defects of proposed laws would be. I hope that we will not only hear them but act accordingly when, as we surely will, we come back to this on Report. In the meantime, I beg leave to withdraw the amendment.
“(1A) Notwithstanding subsection (1), subsections (2) and (3) do not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;(b) that party was not of full age or capacity;(c) the appeal before the First-tier Tribunal was not an in-country appeal;(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.
On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.
There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.
Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.
Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.
There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.
Lord Faulks (Non-Afl)
My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.
The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.
Lord Ponsonby of Shulbrede (Lab)
Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.
Lord Falconer of Thoroton (Lab)
I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.
As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.
In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.
I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.
Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.
In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.
I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.
The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.
It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.
Lord Faulks (Non-Afl)
The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.
Lord Falconer of Thoroton (Lab)
There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.
Lord Pannick (CB)
The noble and learned Lord has raised a number of very valid points in opposition to Clause 2. I offer another, in response to the noble Lord, Lord Faulks, who emphasises that there must be finality in litigation. The problem with that argument is that Clause 2 itself recognises the need for exceptions. New Section 11A(4) specifies exceptions, in particular for a
“fundamental breach of the principles of natural justice.”
In my Amendment 19, I suggest we need a further exception for where the Upper Tribunal has made a fundamental error of law. The noble and learned Lord, Lord Falconer, gave a number of examples where there may be important areas of law that raise fundamental issues that go to the safety of the individual who is going to be removed to a place where they may face persecution or torture. I for my part do not understand why a fundamentally unfair procedure is a greater mischief in this context than a fundamental error of law by the tribunal system. In each case, the Upper Tribunal and the Court of Appeal will have declined to intervene. If the judicial review route is nevertheless to remain open, as Clause 2 recognises, for fundamental procedural defects, surely it should remain open for fundamental substantive defects.
I accept of course, as again the noble Lord, Lord Faulks, emphasised, that there will be claimants with no legitimate point who seek to argue that they fall within the exception, but that is equally true of an exception for fundamental procedural defects. In any event, the answer to that concern is to ensure that any application for judicial review, whether of substance or procedure, is looked at and addressed by the judge on the papers and within a very brief time period.
Lord Etherton (CB)
My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists.
Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court.
The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief.
In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated.
The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court.
At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges.
Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days.
The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.
Lord Thomas of Cwmgiedd (CB)
May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.
I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.
Lord Trevethin and Oaksey (CB)
May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?
Lord Pannick (CB)
That is a very important point. If the noble and learned Lord, Lord Etherton, brings back his amendment on Report, as I hope he will, he may wish to add in a provision along the lines of what we see in relation to criminal matters and under the Administration of Justice Act: that if the judge or the Supreme Court certified that it was a matter of public importance, either the judge or the Supreme Court could give permission for the matter to go straight to the Supreme Court. The judge at first instance may throw out the point, but may nevertheless recognise that it is a point of some significance that perhaps the Supreme Court may wish to consider.
Lord Hacking (Lab)
My Lords, I apologise for the croak in my voice. As two noble Lords have already recognised, the ultimate issue in this batch of amendments is whether Clause 2 remains part of the Bill. Therefore, we should look with some precision at the Bill. Proposed new Section 11A(2) states in respect of the decision of the Upper Tribunal:
“The decision is final, and not liable to be questioned or set aside in any other court.”
That means that any appeal from the Upper Tribunal will now be forbidden. There is a proviso a little further down, in new subsection (4), which can be summarised as “if the Upper Tribunal has behaved improperly or ultra vires”, and there lies an exception, but it is a very strong provision in new subsection (2), as inserted by Clause 2.
At Second Reading, which was the first time I addressed this House after 22 years, I made two points on that issue. I said that, as a matter of principle, it was wrong to shut this out of the judicial process, because no appeals would actually go into the judicial process of our law courts. I argued that it was as a matter of principle wrong, because many of the applicants concerned—and this provision will absorb all the asylum applicants—are among the most vulnerable people who will ever want access to our courts. I argued, secondly, that the processes already in existence were good enough to pick out the unmeritorious applications, which far exceed in number the meritorious applications and which will find no further favour through the judicial process.
Therefore, we should look quite precisely at the decision-making as it now stands. We move from the Home Office decision—asylum or not asylum—to the First-tier Tribunal, then to the Upper Tribunal and then, in limited circumstances, to the single judge, who will make a decision on paper. We then move to an oral hearing, which I think will be in front of the Court of Appeal, and a journey, or a door, into our judicial process. What are the limitations in the present system, which I say are sufficient to sort out the difference between the meritorious and the unmeritorious application?
On the first issue, on the rules relating to the first tier, all issues of fact and law are to be considered by the First-tier Tribunal—but once it has made its decision, there are great limitations on the rights of appeal, and the right to appeal from the First-tier Tribunal is only on errors of law and on the permission of the Upper Tribunal. Of course, that throws out something that is very important, which is any further consideration of the merits of the application. When the matter goes to the Upper Tribunal, there are much more severe restrictions; it is only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reasons. That then brings us, if that can be satisfied, and the law courts accept it, to a single judge—and then it is very limited, with only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reason.
Baroness Jones of Moulsecoomb (GP)
My Lords, I do not have enough experience to talk about this first hand, but I get a lot of very useful briefings from campaign groups. On Clause 2, Liberty summed up the arguments extremely compellingly. I shall not read out the whole paragraph, but I shall read out three sentences.
“Cart judicial reviews are only given permission to proceed where there is ‘an arguable case, which has a reasonable prospect of success”
—that seems perfectly reasonable. Cart reviews
“allow egregious injustices and errors to be caught not just to the benefit of the individual claimant, but the benefit of the system as a whole.”
As the noble and learned Lord, Lord Phillips, put it in the Cart judgment itself, they
“guard against the risk that errors of law of real significance slip through the system”.
I cannot really see any proper way forward than removing Clause 2 in its entirety.
Lord Marks of Henley-on-Thames (LD)
My Lords, if I may, I shall speak first to my Amendment 20, to create an exception to the ending of Cart JRs in cases where the refusal of permission to appeal the decision of the Upper Tribunal
“is likely to lead to the deportation of the applicant to a country where the applicant is likely to be tortured or subjected to inhuman or degrading treatment”.
In such cases, the Cart JR of that refusal is the last hope that an applicant has. If the refusal of permission is wrong in law, I argue that in such a case the decision to refuse permission should not be exempt from review.
These cases are not academic; the injustices are very serious. In the case of G and H against the Upper Tribunal and the Home Secretary in 2016, reported in EWHC 239, Mr Justice Walker considered the case of a Nigerian woman, G, who was a victim of FGM and sex trafficking, who also had a child, H.
The Home Secretary’s decision to deport G and H was appealed to the First-tier Tribunal. It was common ground that, before coming to the UK, G had been the victim of FGM and sex trafficking. The Upper Tribunal dismissed an application for permission to appeal the FTT’s decision. That decision was challenged on an application for JR and the High Court gave permission for a review and found that the decision refusing permission should be quashed, both on grounds of a failure of procedural fairness in the Upper Tribunal decision and that the Upper Tribunal’s refusal of permission to appeal
“involved a material misunderstanding or misapplication of the law.”
In a Scottish case last year of CM v Secretary of State for the Home Department—2021 Court of Session Inner House Cases 15—the Inner House of the Court of Session, on a judicial review application, overturned a decision of the Upper Tribunal refusing permission to appeal an order of the FTT. In that case, the petitioner was a Venezuelan who came to the UK with his wife and young son in 2017, seeking asylum after his friend had been shot in the face by members of the Venezuelan armed forces while they were protesting together. The petitioner had been a witness to the shooting and the security services who had shot his friend knew he had been a witness and had threatened him with dire consequences if he reported their involvement in the shooting. In overturning the refusal, the Court of Session held that the Upper Tribunal had misapplied the law and misunderstood the effect of the evidence.
We know that the vast majority of Cart JRs—92.4% from 2013 to 2020—involve immigration and asylum cases. We also know that a very high proportion of those involve deportation orders and that those orders are often to countries where the country guidance issued by the UK Visas and Immigration section of the Home Office indicates that there is a very high risk of maltreatment on return, not necessarily by the authorities—although often they may be the source of the danger or condone it—but often by traffickers or criminal elements within the countries concerned.
The Government’s arguments—and those of the noble Lord, Lord Faulks, and his committee—in favour of Clause 2 rest largely, first, on the high resources in money and judicial time said to be consumed by Cart JRs and, secondly, on their apparent low success rate. The noble and learned Lords, Lord Falconer and Lord Etherton, have answered conclusively both the points relating to money and judicial time.
As to success rates, it is true that there have only been nine High Court decisions in favour of the applicant on Cart JRs. However, there have been only 13 decisions made at hearings over the relevant period, so 70% of those that have gone to a hearing have succeeded. That puts into perspective the level of success or failure of these JRs. The high failure rate overall is, of course, a reflection of the very high bar that applicants must surmount as a result of the decision in Cart before they get permission to apply for JR.
That explains why, of the balance of nearly 6,000 applications that reach the permission stage, only 6% of 366 were granted permission. The other 94% were refused permission, almost all on the papers. Of the 366 granted permission, 336—approximately 92%—were closed without a hearing, and many of those will have been settled. We do not have the exact statistics on settlement, but I invite the Minister to write to me before Report setting out how many of the applications where permission has been granted have been settled, how many have involved deportation orders, and in how many cases such deportation orders have not been implemented as a result of a challenge being lodged.
I have also added my name to Amendment 19 in the name of the noble Lord, Lord Pannick, which would permit Cart JRs where the Upper Tribunal acts in reliance on a fundamental error of law. I agree with him that there is no justification for a distinction between a fundamental procedural defect and a fundamental error of law. The noble and learned Lord, Lord Thomas, put the same point forcefully when he explained how judges often ignore a fundamental point of law or at least lead themselves to the belief that it does not exist when the facts are strongly one way.
No doubt the Minister will argue that the use of “fundamental” is elastic and that there will be cases where it is open to argument whether there is an error of law which is fundamental. That may be, but judges are very used to considering and determining questions of degree, and it is not hard to leave this one to them. I draw support for that point from the preceding exception in the subsection where
“the Upper Tribunal is acting or has acted … in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.”
If the judges are to determine what constitutes a fundamental breach of natural justice, they can properly be asked to consider what constitutes a fundamental error of law.
Before I turn to the question of whether Clause 2 should stand part of the Bill more generally, I mention that I support the amendments spoken to by the noble Lord, Lord Ponsonby, for the reasons he gave.
I oppose the clause altogether for two fundamental reasons. First, I am simply not persuaded that the reasons for removing the Cart supervisory jurisdiction, limited as it has been by the decision in Cart itself—as pointed out by the noble Baroness, Lady Jones—justify this step. The Government’s argument starts by accepting that the ending of the jurisdiction will cause injustice in some cases. That is not acceptable. I repeat that these are serious cases. What is more, they involve an important principle that decisions should be made lawfully. The limitations on the Cart jurisdiction fully take account of the fact that the Upper Tribunal is an independent specialist tribunal, often presided over by a High Court judge, and that its jurisdiction should not be lightly usurped by interference from the High Court. But usurpation should not be confused with supervision, and I believe the decision in Cart got the balance right. Even if the Government’s presentation of the figures on cost and success rates are exaggerated, they are presented in a one-sided way that does not give sufficient weight to the importance of the issues of principle at stake.
Secondly, as I indicated at Second Reading, I fear that the Government are using Clause 2 as a stalking horse for other ouster provisions in future; this point was taken up by the Minister when I made it. On any view, this is an ouster clause. I see that the Government are trying out new categorical and, they assume, bomb-proof—or at least judge-proof—drafting for this clause in subsections (2) and (3). I note that the Government’s press release indicated that they see these subsections as a template for ouster clauses in the future.
With a few limited exceptions, such as proceedings in Parliament, we on these Benches are against ouster clauses, because they hand power to the Executive to act contrary to law and outside the limits of what the law permits the Executive to do. In that way, they are inimical to the rule of law. In this Bill, I see the Government as having picked a soft target, because this concerns, they say, the ending of challenges to decisions of senior tribunals refusing permission to appeal. However, the drafting of subsections (2) and (3) could be used to frame other exemptions from challenge to Executive action, more unprincipled and more dangerous, in the future. This Bill would then be available to be relied upon as a precedent in the future for such ouster clauses. We should not underestimate the power of precedent. It is a useful tool for lawyers and drafters alike, but in the wrong hands and in the wrong place, precedent can be dangerous for principled lawmaking.
That is why I am attracted to Amendment 23 in the name of the noble and learned Lord, Lord Etherton, which proposes a compromise which does not risk future use as a template. The noble and learned Lord’s proposal that there should be no appeal from a decision of a supervisory court on a Cart JR, but that supervisory jurisdiction should be retained, has much to commend it, but I agree with the proviso proposed by the noble Lord, Lord Trevethin and Oaksey, and supported by the noble Lord, Lord Pannick. That formula would be far less amenable to misuse in later legislation to exempt government action or decision-making from judicial supervision. That protection is not afforded by the present Clause 2.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to comment on Amendment 23 in the name of the noble and learned Lord, Lord Etherton. The amendment retains the Cart supervisory jurisdiction but bars
“any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise”,
and the decision of the High Court will be final. As the noble and learned Lord put it, this is a middle way. In a way, it is a shame that it was not degrouped from this group of amendments because, essentially, we have been having two debates in parallel. Also, it might have been more appropriate as a Report stage amendment.
By way of introduction to my comments on the amendment itself, one of the experiences of being a magistrate is that a lot of legal advisors leave magistrates’ courts to go and work in the administrative courts; it is a career progression for a number of them. Some, who I would count as friends, have said to me how utterly hopeless are many of the cases they have to deal with and prepare for the judges; so, interestingly, a number come back to the magistrates’ courts because they prefer the work there. Anyway, that is an aside.
The noble and learned Lord, Lord Etherton, questioned the figures presented by the Minister. I would be interested to hear the Minister’s response to that. A number of noble and learned Lords proposed further amendments. The noble Lords, Lord Trevethin and Oaksey and Lord Pannick, also proposed further amendments, which may come back on Report; we wait to hear. I noted that the noble Lord, Lord Marks, also supports the approach taken by the noble and learned Lord, Lord Etherton. I think that an encouraging statement has been made by all these noble Lords.
As I said earlier, we oppose Clause 2 standing part. I am grateful for the support of the noble Baroness, Lady Jones, and the noble Lord, Lord Evans, on that, but I intend to withdraw my amendment after the Minister has spoken.
Lord Wolfson of Tredegar (Con)
My Lords, I will begin by addressing the clause as a whole before dealing with specific amendments, as a number of Members of the Committee have indicated that they believe the clause should be wholly removed from the Bill.
As the Committee is aware, Clause 2 overturns the Cart and Eba judgments, removing the route of challenge known in short hand as a Cart judicial review. Let us be clear exactly what that is: it is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. The claimant has already had a case before the First-tier Tribunal, which the claimant has lost, and the claimant has then been refused permission to appeal by both the First-tier and Upper Tribunal. A Cart judicial review allows an applicant to challenge in the High Court the Upper Tribunal’s refusal of permission to appeal—and that is not the end of the matter. If permission to apply for judicial review of the Upper Tribunal’s decision is refused by the High Court, that itself opens a route to the Court of Appeal, as we heard from the noble and learned Lord, Lord Etherton.
It should not surprise anyone that the Upper Tribunal, which is a senior and specialist tribunal, in some cases presided over by a High Court judge, appears to get over 96% of its determinations on permission to appeal right. In this context, “right” means that, sometimes, another High Court judge sitting on an application for a judicial review did not give permission. That should not come as a surprise because the Upper Tribunal is a senior court with a specialist jurisdiction, with senior judges sitting on it, so it is well suited to determining those questions of law.
I have heard it argued that we are removing a lifeline for claimants, but that argument can be extended to any system that has a limit—and there must be a limit. The question for Government and Parliament is where to draw the line. It is commonplace in our judicial system, so far as applications for permission to appeal are concerned, for that application to be considered by the original judge and the putative appellate judge, but no more. That is what the tribunal system does already.
Some members of the Committee may remember the decision in Board of Inland Revenue v Haddock, a decision of the Court of Appeal, comprising the Master of the Rolls, sitting with Lord Justice Ratchet and Mr Justice Apple, but reported only by one AP Herbert in his collection Uncommon Law. Subtitled
“Why is the House of Lords?”—
referring, I hasten to add, to this House in its former judicial capacity—the report posed the question why there should be three tiers of appeal: judge, Court of Appeal and then what he referred to, somewhat impertinently, as the
“wild wager on the final race”,
as he described the former Judicial Committee of this House. This metaphor meant that the Court of Appeal was relegated to
“a minor handicap taking place at 3.30”.
However, we have moved on since then. There is often now one tier of substantive appeal. If you want to appeal from a master to a judge, and then from the judge to the Court of Appeal, there are very special rules for second substantive appeals, and even showing that the judge was probably wrong is not enough to get you a second appeal. This is not even a substantive appeal; it is a question of permission to appeal where both the First-tier Tribunal and the Upper Tribunal have refused permission.
As I have said, the Upper Tribunal does not err often, with only 3.4% of claimants who were refused permission to appeal being granted an appeal and then having that appeal found in their favour. That can usefully be compared to a general 30% to 50% success rate for judicial review cases. Due to this, and the sheer number of Cart JRs per year—around 750—the IRAL recommendation was for Parliament to legislate to remove the Cart judicial review process.
I obviously listened very carefully to what the noble and learned Lord, Lord Etherton, said about the time and motion study and the assumptions set out therein. I know that he and my officials have had a number of useful exchanges on this. We have striven to count as accurately as possible the days taken at each point in the process, and we set that out in our impact assessment. I think that the noble and learned Lord omitted the time taken by the Upper Tribunal for reconsideration, which is not insignificant. Whatever the number of cases that reach the Court of Appeal, it must be more than zero. Therefore, I argue that there is a risk that we are actually underestimating the judicial time spent on Cart reviews. But, for present purposes, I can say that I am very happy to continue discussion on these matters ahead of Report. I will also write to the noble Lord, Lord Marks, about the data, if there is any—I do not know whether there is—on the settlements and the other points that he mentioned.
The second contention put against me is that the means by which we propose to implement the recommendation is a dangerous one. There are two points here. First, are ouster clauses appropriate in principle? I know that I will not persuade the noble Lord, Lord Marks, on this but, to put it briefly, parliamentary sovereignty means that an ouster clause can be appropriate in principle, I suggest. Legislation can change any aspect of the law and can also include an ouster clause. Although I respect and understand the argument that they are wrong as a matter of principle, I and the Government do not agree with this argument, and we consider that they are appropriate in particular circumstances.
The question now is: in this case, is the ouster clause the proper measure? We say it is: this is the best way to make Parliament’s intention clear vis-à-vis the relative and respective competences of the Upper Tribunal and the High Court. I absolutely accept that the clause’s drafting has been influenced by the arms race, one might say, between Parliament and the courts on ouster clauses in a series of cases. Parliament says X; the court says, “Did you really mean X? Maybe you meant Y.” Parliament says, “No. We are now saying Y.” “Well, what about Z?” You can see that development of the cases from Anisminic through Privacy International and thereafter. That is why the clause must in the form it is: otherwise, the point from Privacy International will be put: “Why does it say ‘purported’?” I think that was the Privacy International point. That is why the clause is drafted in the way it is.
Amendment 23 in the name of the noble and learned Lord, Lord Etherton, creates a procedural bar, providing that the decision of the High Court or any other supervisory court in reviewing an Upper Tribunal permission to appeal decision is final, preventing any escalation of that point to the Court of Appeal. Although I accept that that approach would create some efficiencies compared with the status quo, they would be significantly fewer than the approach we are taking. It also does not address the conceptual issue, with the High Court overseeing permission to appeal decisions of the Upper Tribunal, which is a senior court of record with specialist subject knowledge.
I am also concerned that some of the nuance in the original ouster clause, which still allows review in certain circumstances, has been lost in that revised version. The procedural bar proposed by the noble and learned Lord would seem to be absolute, not only on the refusal of permission point but, as was identified in the debate, in the substantive disposal were permission granted. As the debate went on, it seemed to me that the lid would not be as tight-fitting as he intended. Indeed, it sounded to me that as more additions and exceptions were built into the amendment, we would be back at either square one or, perhaps at best, at square two. Therefore, although I appreciate that the noble and learned Lord seeks a compromise solution, his amendment, especially with the additions accreted thereto, would not meet the Government’s policy intent.
Amendments 16 and 20 in the name of the noble Lord, Lord Ponsonby, and Amendment 21 from the noble Lord, Lord Marks, add a variety of exemptions to the ouster clause in particular cases but, in short, the Upper Tribunal is well placed to know the circumstances. It deals with matters of immigration law on a regular basis, and I therefore see no justification for treating those circumstances as exceptions to the ouster clause.
Amendments 17 and 18 apply to the natural justice exemption. This provision was amended by the Government on Report in the other place to read in the words now in the Bill. That was not, as my colleague James Cartlidge explained, a change of policy. Our intention is for substantial procedural impropriety to remain reviewable but for errors of fact or law within the Upper Tribunal’s remit to be ousted. The new wording is intended to be clearer. The amendments would undo the clarification on that point. As to whether fundamental breach is particularly different from material breach, that is perhaps something of a moot point. The intention is to set a high bar which will not be susceptible to erosion over time or cause an unnecessary number of applications, which would undermine the entire purpose of the ouster.
In that context, Amendment 19 in the name of the noble Lord, Lord Pannick, which would allow the High Court or the other supervisory jurisdictions to carry out a JR of an Upper Tribunal permission to appeal decision where there is a “fundamental error of law”, risks taking us back, I am afraid, almost to where we started. That amendment attempts the same thing the Supreme Court attempted in Cart itself—to create a route for judicial review on errors of law but with a sufficiently high bar not to create a flood of cases. That attempt obviously failed, and I fear the noble Lord’s amendment will take us back and, essentially, repeat the same mistake.
Lord Ponsonby of Shulbrede (Lab)
My Lords, it is clear we will return to a number of issues on Report. But for this evening, I beg leave to withdraw Amendment 16.
Judicial Review and Courts Bill
Thursday 24th February 2022
(2 years, 9 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-II Second marshalled list for Committee - (22 Feb 2022)
“(1) Before this section may come into force, the Secretary of State must—(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction option and penalty for certain summary offences;(b) lay before Parliament the report and findings of this independent review; and(c) provide a response explaining whether and how such issues which have been identified will be mitigated.”Member’s explanatory statement
This amendment would require a review of the potential impact of Clause 3 before it can come into force.
Lord Marks of Henley-on-Thames (LD)
My Lords, Clause 3 of the Bill sets out a new code, which is to become new Sections 16G to 16M of the Magistrates’ Courts Act 1980, which provides for a new procedure. I will summarise it relatively briefly. First, it enables those accused of certain summary non-imprisonable offences to be offered an automatic online conviction option; secondly, it enables such an accused to plead guilty online; thirdly, it provides for such an accused to be convicted as a result of such an online plea; fourthly, it provides for the penalty for such a conviction to be determined at a figure to be specified in regulations; fifthly, it provides for the endorsement of a driving licence with points, as appropriate; sixthly, it provides for compensation to be payable up to a maximum specified figure, the amount to be determined by the prosecutor; and finally, it provides for the payment of prosecution costs and a surcharge of the amount specified for the offence. That is not defined but is to be specified in regulations and could vary for different offences and circumstances. As to the question of appeal, it is intended by new Section 16M that a magistrates’ court may set aside a conviction or penalty under the procedure if it is unjust.
My Amendment 24 calls for an independent review of the potential impact, efficacy and operational issues on defendants and on the criminal justice system of these provisions. That is not prompted by unqualified hostility to the idea of a simple, streamlined online option to deal with low-level offences that are voluntarily admitted by offenders. On the contrary, if that is properly introduced, with suitable safeguards, I see considerable benefits to these provisions.
Rather, my amendment is an expression of concern that the full personal consequences for people likely to be convicted and penalised by these new means have not been sufficiently considered. They need to be fully considered before the new procedures come into operation.
There have been several impact assessments on the Bill, one of which was targeted on its criminal procedure measures, including these—but it is limited in scope. That is not a criticism of the MoJ; it is in the nature of such impact assessments that they explain what the measures proposed will do and consider what they call the “monetised” and “non-monetised” costs and benefits of the measures proposed. But the assessment is, if I may so describe it, extremely clinical.
The non-monetised costs of measures in Clause 3 are described in the impact assessment in fairly stark terms. The first part of the measures, the online pleas, are described as having the following non-monetised costs for legal aid agencies:
“There is a cost for the LAA associated with changing their service design to ensure that legal representation is available for defendants indicating a written/online plea, where duty solicitors will no longer be engaging with defendants at the first magistrates’ court hearing. Currently this cost is not monetised, as the LAA are exploring a number of different change options.”
For the CPS:
“There may be additional administrative costs … as the new processes will mean more activities are moved online. However, until the future service design model for the CPS has been finalised, these costs cannot be quantified.”
On the online conviction and sentence provisions, the assessment states:
“There will be IT costs to HMCTS for the development, operation and maintenance of the online system. However, as it is not possible to isolate these costs from the wider costs of digitisation and modernisation under the HMCTS Reform programme, they cannot be monetised … There may also be a perceived lack of fairness in the new system insofar as it is no longer means-tested, allowing those with higher incomes to reduce the imposition they receive.”
That last paragraph is the only real mention of the personal non-monetised costs of these provisions.
Right at the outset, I accept that a great deal of the impact will depend on the regulations and the way in which the system operates in relation to offenders. The amendments from the noble Lord, Lord Ponsonby, pick out some of the possible pitfalls. He addresses the difficulties faced by disabled and unwell defendants; those with vulnerabilities or disabilities. He addresses the need for legal representation, which might of course mitigate many of the difficulties for defendants involved in this procedure. But will simple legal representation and its availability address not just the question of cost but the difficulty in accessing legal aid? There is also the rather more nebulous question of whether defendants will take the trouble to get representation or land themselves in difficulties by proceeding without it until it is too late. They may decide not to get representation because the new procedures are online and relatively simple.
There are also wider problems of the defendant’s understanding of not just the process but its consequences. How will digitally excluded offenders deal with the process? Later, we will come to the question of digital assistance in civil proceedings, but those who are unable to access online proceedings easily will find this extremely hard. How many people will be accused and plead guilty for convenience only, because they are faced with an online procedure, when they might not plead guilty were they better informed? How far will defendants understand the consequences of the online conviction that will follow a plea of guilty, and how far will they be aware of the financial consequences? At the moment, it is entirely unclear how far defendants pleading guilty will do so without knowing the financial implications of conviction. It would be helpful if the Minister could indicate whether the regulations will require that all the financial consequences of conviction will be spelled out when the option of online conviction is offered, given that penalty, prosecution costs, compensation and surcharge are likely to be determined only after the plea.
There are other consequences that need consideration, which online processes may make more difficult. The court will lose the opportunity, which I regard as valuable, to identify and address problems for the defendants it penalises. In personal proceedings, justices can see the defendant and can consider for themselves any difficulties and consequences. How do we address that?
There will also be problems with how fines, compensation and costs will be paid. How far have the consequences for families been considered? The impact on defendants and their families of having to pay even relatively small sums can sometimes be underestimated. Another issue that arises is the effects on families of enforcement measures when fines have been levied and compensation and costs have been ordered to be paid. These can amount to quite significant sums which, for people in want of means, are very difficult to raise. Enforcement measures can be far more severe than the financial penalties originally imposed.
How far will the convictions, penalties and consequences reduce or eliminate the opportunity for defendants to get assistance from local authorities and other agencies for them and their families? Perhaps the Ministry of Justice has in mind to ensure that these issues are thoroughly addressed before the regulations come into force, but I fear that they may not be addressed at this stage or even then, and this work needs to be done. I invite the Minister to address these issues not just in his response now but over the period pending Report.
Lord Pannick (CB)
Perhaps I might raise a point with the Minister. As I understand the scheme of Clause 3, this automatic online conviction procedure is going to apply only to those offences which are set out in regulations made by the Lord Chancellor, as in new Section 16H(3). The Lord Chancellor has a discretion as to which offences are here relevant. That is by contrast with the provisions set out in Chapter 2 for online procedures generally in relation to civil proceedings, where under Clause 21 the Lord Chancellor may make regulations determining which proceedings the online procedure applies to. But under Clause 21(6) he or she may make regulations only with the concurrence of the Lord Chief Justice, or the Senior President of Tribunals.
Noble Lords in this Committee may recall—certainly the noble Lord, Lord Beith, will recall—that this was the consequence of amendments which we tabled as a result of a report from the Constitution Committee which stated that it was appropriate for the Lord Chancellor, in the civil context only, to provide for particular matters to be subject to the online procedure if there was the concurrence of the Lord Chief Justice. My question to the Minister is whether it would not be more appropriate in this criminal context, in order to provide added protection for individuals for the sorts of reasons indicated by the noble Lord, Lord Marks, if the Lord Chancellor was required to have the concurrence of the Lord Chief Justice before specifying the appropriate criminal offences. I say that with the understanding that we are talking only about summary offences, as in new Section 16H(4). Nevertheless, it may be more appropriate to require the concurrence of the Lord Chief Justice.
Baroness Jones of Moulsecoomb (GP)
I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.
Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.
The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.
I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.
I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.
As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.
After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.
As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.
The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.
The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.
Lord Pannick (CB)
I am grateful to the Minister. That was the point that I was seeking to make. The last time the online procedure Bill came before Parliament, in 2019, this Committee debated very carefully whether it was appropriate to allow the Lord Chancellor to determine which civil matters should be dealt with online. Your Lordships’ Constitution Committee recommended that it was inappropriate for the Lord Chancellor to decide such matters. This House debated and the Government gave way. The Minister’s predecessor —not quite his predecessor—the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, accepted that it was appropriate for the concurrence of the Lord Chief Justice to be required. Why does the Minister think it is different in the criminal context? I suggest that there is even greater sensitivity in the criminal context than in the civil context and that the concurrence of the head of the judiciary is required.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.
Baroness Chakrabarti (Lab)
Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.
Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?
Lord Wolfson of Tredegar (Con)
I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.
I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.
Lord Marks of Henley-on-Thames (LD)
Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?
Lord Wolfson of Tredegar (Con)
My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.
Lord Marks of Henley-on-Thames (LD)
I am grateful to the noble Lord for that clarification; I will consider it.
I will of course withdraw the amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.
The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.
“Review of the single justice procedure
(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.(2) A review under subsection (1) must consider—(a) the transparency of the single justice procedure in line with the principle of open justice,(b) the suitability of the use of the single justice procedure for Covid-19 offences,(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.(3) The Secretary of State must lay a copy of the report before Parliament.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.
I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.
Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
My noble friend will speak to her Amendment 37. Amendment 54 says:
“Before section 43 may be commenced, the Lord Chancellor must—
(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,
(b) lay before Parliament the Report and the findings of such consultation, and
(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”
To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.
Baroness Chakrabarti (Lab)
My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.
Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.
Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.
I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.
Lord Falconer of Thoroton (Lab)
My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,
“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”
I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.
I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.
This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.
Baroness Whitaker (Lab)
My Lords, as a former magistrate, I warmly support the first point made by my noble and learned friend. The differences in offences, their nature and conduct vary enormously in general, from area to area and region to region. To understand not only the offence but its cause and, therefore, what a suitable disposal might be is really important.
Lord Marks of Henley-on-Thames (LD)
My Lords, the amendments in this group seek reviews or consultations in three quite disparate areas. The first, in Amendment 30 tabled by the noble Lord, Lord Ponsonby, concerns the single justice procedure. The second, in Amendment 37 from the noble Baroness, Lady Chakrabarti, concerns a call for an inquiry into the treatment of women and girls in the criminal justice system. The third, in Amendment 54 in the name of the noble Lord, Lord Ponsonby, concerns local justice areas.
First, as to the single justice procedure, there is no reason in principle to oppose Clause 5, which is the related provision in the Bill. It simply extends the procedure to corporations—and it is probably an anomaly that it did not apply to corporations in the first place. Many of the points that I made during consideration of the first group, relating to a review of the new online procedure, also apply in respect of the single justice procedure. It would be sensible for the single justice procedure to be the subject of the same review, consultation and consideration as the new online procedure.
I join the noble Baroness, Lady Chakrabarti, in thanking the noble Lord, Lord Ponsonby, for his helpful account today, and the help that he gives to the House generally as a practising magistrate and with his very important experience in the magistrates’ court. The magistracy is an extremely important part of our criminal justice system. I forget the precise statistic, but magistrates’ court deal with some 96% of all criminal cases. They are a crucial point of disposal.
I accept, as he did, that the single justice procedure has been of considerable use in minor cases generally, but he also pointed to the impersonality of that procedure and the lack of flexibility that it has in dealing with particular cases. It is valuable in minor cases and in cases such as television licence evasion, which I understand is one of the areas for which it is used. It has been particularly helpful with Covid regulations during the pandemic. However, we should not forget that imposing financial penalties remotely—for example, in the case of television licence evasion—can end up with people being severely penalised for failure to pay and even sent to prison. There is also significant evidence that that particular offence and its enforcement affect women disproportionately.
This brings me to the second area in which a review is sought in this group, Amendment 37, tabled by the noble Baroness, Lady Chakrabarti, which seeks a judicial inquiry into the criminal courts’ treatment of and service to women and girls. The noble and learned Lord, Lord Falconer, spoke to it too. In debates on the Police, Crime, Sentencing and Courts Bill, now back in the other place for further consideration of our amendments, I moved an amendment seeking the establishment of a women’s justice board. It had significant and widespread support around the House, and for me it is a matter of great regret that despite having the personal support of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Ponsonby, the Labour Party was not prepared to vote for the measure. If the measure had been supported by the Labour Party, we might have succeeded on that Division. That is a major reform for which I will continue to press. I hope that the support of those who supported it across the House in that Bill will continue to be forthcoming in future attempts, because it is one way to have a significant effect on addressing the difficulties of women and girls within the criminal justice system. Meanwhile, I of course support the noble Baroness in her Amendment 37.
Amendment 54 mandates consultation with relevant stakeholders about the abolition of local justice areas before that abolition under Clause 43 can come into effect. I see the merits of abolishing local justice areas. It will remove the boundaries between such areas, which—as the Explanatory Notes suggest—are largely artificial. That ought to enable magistrates’ courts to work on a more unified or at least a more collaborative basis and manage their work more logically. However, I listened with care to the note of caution introduced by the noble and learned Lord, Lord Falconer. If it is intended by the abolition of local justice areas to destroy the local base of the magistracy, that would be a great step backwards. It is very important that magistrates are dispensing, are seen as dispensing, and understood as dispensing, local justice. While I am completely understanding of the proposal to alter the artificial boundaries so that courts can collaborate on wider areas or narrower areas as appropriate, so that the artificiality is removed, it is very important to preserve the local justice principle. I expect that we will hear more from the Minister about the consultations that have already taken place on this issue in response to the amendment, and I look forward to hearing what he has to say. I hope that he will address that point with care.
Lord Mackay of Clashfern (Con)
I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.
I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group, Amendments 30, 37 and 54, all deal with reviews of the criminal justice system or criminal court procedure. I will take them in turn.
Amendment 30 would require the Secretary of State to commission a review and publish a report on the effectiveness of the single justice procedure. The review would consider the transparency of the procedure and its use in the prosecution of Covid-19 offences. Let me begin by allying myself to the comments of the noble Baroness, Lady Chakrabarti, and thanking the noble Lord, Lord Ponsonby, for his service as a magistrate, and for what that service gives us in these debates: a real, from-the-front-line addition on how things are going. Since that has been raised, I also thank more generally all magistrates. As the noble Lord, Lord Marks, said, they are the backbone of our criminal justice system. During the pandemic, they went above and beyond to keep the wheels of justice turning.
On the substance of the single justice procedure, I should first make it clear that a case dealt with under the single justice procedure is dealt with in the same way as any other case, except that a single magistrate can deal with it and, as we have heard, the hearing need not be in public. The magistrate must comply with the same legislative safeguards as all other proceedings, and the Sentencing Council’s sentencing guidelines apply in the same way. Importantly, as with the previous group, the single justice procedure is entirely optional. Also, all processes are reviewed regularly to ensure that it is easy to navigate and accessible. Following consultation, the single justice procedure notice has recently been revised to make it even clearer for users.
We have also worked closely with the media to ensure that this procedure is accessible and open, because justice in this country is public justice. While the criminal procedure rules require all courts to give certain additional information on individual cases upon request from the media and other interested third parties, courts are currently obliged to give more information on cases prosecuted under the single justice procedure. That would include the prosecution’s statement of facts and the defendant’s statement in mitigation if there was one.
In addition, a list of pending single justice procedure cases is published each day online and is available to the public. The media also receive a more detailed list of these cases so that they can report on them if they so wish. So, actually, the media receive more information about cases dealt with under this procedure than traditional proceedings, where they get the information only if they actually turn up to the hearing. As I am sure the noble Lord, Lord Ponsonby, would confirm, it is now quite rare that local newspapers turn up. So, far from reducing transparency, the online procedure actually increases it, and I am sure that everyone in the Committee would agree that that is a very good thing.
Lord Beith (LD)
I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.
Lord Wolfson of Tredegar (Con)
Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—
Lord Falconer of Thoroton (Lab)
The legislative form that this is taking, in Clause 43(1), is:
“Local justice areas are abolished.”
The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?
Lord Wolfson of Tredegar (Con)
First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.
I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.
Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.
We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.
On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.
Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.
In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.
I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate. I have to admit that Amendment 54 provoked more comment than I was anticipating. I particularly thank my noble and learned friend Lord Falconer for his observations about the importance of local justice areas, and my noble friend Lady Whitaker for her experience of local justice areas. The same point was made by the noble and learned Lord, Lord Mackay.
I understand that there needs to be a balance between getting rid of artificial boundaries and recognising the importance of locality. While the point made by the noble Lord, Lord Beith, about rural local justice areas is absolutely right, where people have to travel a great distance, in a big conurbation such as London I personally feel very much connected to the area where I sit as a magistrate.
I want to add one extra point to this debate, which I understand will be going on, about the importance of the pastoral role of the Bench chairman. I sit as a chairman for the Greater London Family Panel, and quite literally every day I deal with pastoral matters for my magistrate colleagues. It is a very important role and one that my colleagues appreciate. I think it is important that that role should continue in some way, because it is a way of maintaining the morale of magistrates within a particular area. I beg leave to withdraw the amendment.
“and has received the advice of a legal representative prior to submitting a plea.”
Lord Ponsonby of Shulbrede (Lab)
My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.
In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.
Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.
Baroness Chakrabarti (Lab)
My Lords, I shall speak to Amendment 36 in my name. I also support Amendment 36A in the name of my noble friend Lord Ponsonby. I declare an interest as a member of the council of JUSTICE, the all-party law reform organisation, and a British agent of the International Council of Jurists, along with many other Members of the Committee and your Lordships’ House.
Notwithstanding the praise that we all rightly heaped on my noble friend and his fellow magistrates in the earlier group, I am a passionate believer in the right to jury trial. I suspect I am not alone in that in this Committee. Juries are not perfect; however, I have defended jury trial, sometimes against Governments of both stripes, for at least 20 years. I hope I do not need to rehearse for too long why it is such an important right. It is not just because people believe in it. People want to be tried for serious matters that will send them to prison for a long time and destroy their reputations, and lives in many cases, not just because they want to be convicted by their peers; it is also important for trust and confidence in the justice system that it is not always seen as primarily about more-deprived and working people in the dock being adjudicated over by middle-class professionals like this Committee. As a third point, my experience of people who have served on juries is that it is a really important part of public service and engagement that people from a broad range of communities can ideally participate in. It is a very important glue for our country and the rule of law. I hope that did not need rehearsing, and I will stop on it there.
I note that in more controversial debates, for example around the Human Rights Act and its survival or not, some of the Minister’s colleagues—and indeed the current Justice Secretary—have said that one of the ways in which the Human Rights Act might be improved on would be with greater entrenchment of the right to jury trial. That is said on the one hand yet, on the other hand, provisions are taken to extend the sentencing powers of magistrates, which is ultimately a significantly broad back door to undermining jury trial.
I understand that the Government are concerned about the backlog. I certainly understand that the backlog in the system has been exacerbated by the pandemic. But if the Government did not share some of my concerns, they would not have added the so-called off switch in the other place that is now to be found in Clause 13. I am concerned not just in principle because of my belief in jury trial, but in practice as to whether the measures in the Bill will actually do what the Government are hoping. First, will these measures really save 1,700 sitting days in Crown Courts by enabling 500 jury trials to be switched to magistrates? Is that really a credible figure? Even if it is, we think that it would represent a saving of only 1.6% according to recent courts service estimates. Secondly, there is a presumption that defendants will not exercise their right to opt for a jury trial, which they are more likely to do if the benefit of a lesser sentence is not a temptation to take the magistrates’ court option. Thirdly, I am really concerned about whether there will be sufficient and appropriate training for magistrates if we are to double their sentencing powers. That is the rationale behind Amendment 36 and, quite possibly—I will not speak for my noble friend Lord Ponsonby—part of the rationale for Amendment 36A as well.
Lord Pannick (CB)
My Lords, I express my support for Amendment 36A. When I was a member of your Lordships’ Constitution Committee we looked into the impact of the pandemic on the criminal courts. What was striking about our activity was the difficulty we had in extracting from the Ministry of Justice any valuable, reliable statistics on what was happening in the criminal justice system. To have a specific statutory obligation to produce data on this important subject is essential if Parliament is to know what the impact of these new provisions will be.
Baroness Whitaker (Lab)
My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.
Lord Falconer of Thoroton (Lab)
My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.
Lord Deben (Con)
My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.
I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.
I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.
Lord Marks of Henley-on-Thames (LD)
My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.
These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.
As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.
These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.
I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.
As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.
As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.
Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.
Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.
Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.
Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.
Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.
Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.
Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.
There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.
Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.
First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.
I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.
Lord Wolfson of Tredegar
“Power to make certain provision about dispute-resolution services
(1) This section applies to Online Procedure Rules which provide—(a) for the transfer by electronic means of information held for the purposes of an online dispute-resolution service to a court or tribunal, or(b) for a court or tribunal to take into account, for any purpose, steps that a party to proceedings has or has not taken in relation to an online dispute-resolution service.(2) The Rules may be expressed so that their application in relation to a particular service depends on things done by a particular person from time to time.(3) The Rules may, for example, refer to such services as—(a) appear from time to time in a list published by a particular person, or(b) are from time to time certified by a particular person as complying with particular standards.(4) In this section—“online dispute-resolution service” means a service accessible by electronic means for facilitating the resolution of disputes without legal proceedings;“particular person” and “particular standards” include, respectively, a person of a particular description and standards of a particular description.”Member’s explanatory statement
This new clause enables Online Procedure Rules to allow things done by third parties to determine the application of the Rules to particular online dispute-resolution services.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that there is another amendment in this group, Amendment 39, in the name of the noble Lord, Lord Ponsonby of Shulbrede. I hope the Committee will find it helpful if I speak to my amendment and then respond in the normal way to the noble Lord’s amendment.
Both amendments relate to the new Online Procedure Rule Committee, OPRC, created by the Bill. Amendment 38 seeks to give, by way of a new clause, greater flexibility to the Online Procedure Rule Committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. This will enable parties who try to resolve their dispute online prior to commencing legal proceedings to then transfer into the legal process in a seamless and efficient way if it proves impossible to resolve some or all of their dispute. The key point is that the IT processes will enable these pre-action dispute resolution processes to roll over into the online legal processes where that is necessary, saving parties time and cost in preparing a new claim. I am grateful to members of the Committee who have taken time to engage with me on this proposed government amendment.
Baroness Chapman of Darlington (Lab)
I shall quickly speak to Amendment 39, in the name of my noble friend Lord Ponsonby, which seeks some assurances from the Minister on how this will work in practice. We accept the good intentions of the Government in this, and we welcome Ministers making it clear that they understand that not everyone is going to be able to use online procedures and some may feel that assistance in starting or progressing their case is needed. We support the extension of digital procedures, but we think it is very important that users receive an equal service no matter which channel they engage through.
We know that, despite the best intentions of everybody involved, everyday pressures on the ground can sometimes conspire to make unavailable the assistance that, ideally, we would all like to see, or to not deliver it in an appropriate way. We have tabled this amendment because we want assurances from the Minister about provision for digitally excluded people. Research from Lloyds Bank indicates that some 16% of the population do not have the skills to participate digitally. I have colleagues on the Labour Front Bench whom I frequently assist with Divisions, so I do hope they never find themselves subject to these procedures. It is not always obvious, though, who is going to need this support—I am not going to name names. Those who, ordinarily, might be able quite easily to access services online might struggle when dealing with complex issues because they are at a time of extreme crisis in their lives. Others, I am sure, could take great advantage of being able to complete processes digitally. We need to be confident that we are not putting in place systems that leave some individuals disadvantaged.
In Committee in the Commons, there was a long discussion about this issue, whether the definition in the Bill of those who need support was sufficient, and whether paper-based processes should be available on demand. Can the Minister assure us that a user-centred approach will be taken at every stage and in every case, so that the means of engagement is always appropriate to the individual and is offered, rather than that which may be most convenient for the service provider?
I am slightly nervous about the emphasis on the service seeking to direct as many users as possible through primary digital channels and this becoming the priority for the service, even when an individual may not feel completely comfortable with that approach. I know that during earlier stages of the Bill, Ministers have been as reassuring as possible on these points, but we still need more reassurances about the practical reality. Perhaps the Minister can say how he intends to monitor implementation of these measures, so that we can make appropriate interventions should the need arise.
Lord Pannick (CB)
My Lords, the Minister rightly said that his Amendment 38 is a modest one, but this group of amendments raises more general concerns, as the noble Baroness, Lady Chapman, has just explained.
The noble Lord, Lord Deben, may be interested to know, in the light of his earlier observations, that Clause 19 gives the Minister a power to make rules that require that specified kinds of legal proceedings “must” be conducted, progressed or disposed of by electronic means. The Minister could say, in principle, that all cases in the Court of Appeal of a civil nature will not be conducted by oral hearings; they will disposed of by pressing a button on the computer, and the judge will then decide. That is quite a remarkable power, the noble Lord may think.
Lord Pannick (CB)
The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.
When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?
Lord Falconer of Thoroton (Lab)
In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?
Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be
“certified by a particular person as complying with particular standards.”
To be helpful, in a way, the amendment says that
“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”
Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.
Lord Pannick (CB)
My Lords, I am sorry to rise again, but I want to respond to what the Minister was indicating to me: that, under Clause 19(6), it would be open to a litigant in civil proceedings to choose not to proceed by electronic means even if the rules otherwise so required. What Clause 19(6) actually states is:
“Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
As I understand it, this means that, if the claimant or defendant is legally represented, they can be compelled to proceed by electronic means. So, if the Minister were ever to return to the Bar, which would of course be a great loss to Parliament, and were I to have the pleasure of appearing against him in a case in the High Court, the Court of Appeal or the Family Division, the Lord Chancellor could, by rules, specify that those proceedings are to be conducted by electronic means and that the normal course of advocacy in court—I of course declare my interest as a practising barrister—would not take place. That is why I am particularly concerned that the Minister can assure the House that the ministry has no intention of applying these rules to the Family Division, the High Court and the Court of Appeal other than in small claims cases—that is, cases involving sums of up to £25,000—which is what the noble and learned Lord, Lord Keen, told the House in 2019.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will speak first to government Amendment 38, which makes provision for pre-action dispute resolution services and procedures to be taken into the overall procedure within the Online Procedure Rules. In principle, we particularly welcome this recognition of the importance of alternative dispute resolution procedures in the civil justice context. We accept the Government’s point that it is even more important in the context of online procedures, where modernisation and simplicity of approach are at the forefront of the Government’s aims, than it is in the context of conventional procedures to make provision for online alternative dispute resolution procedures to be brought into the overall picture.
However, what is proposed is a power only; it is not even really a template, as the noble and learned Lord, Lord Falconer, pointed out, although not in those words. We simply stress how important it will be, in the context of the Online Procedure Rules, to integrate the arrangements to facilitate ADR into online procedures in a clear way. The noble and learned Lord pointed out particular areas where the provisions were very unclear about who would be responsible for those procedures and how they would be authorised, but I would welcome clarification from the Government as to how they propose to proceed in that regard.
Amendment 39 on online procedural assistance in the name of the noble Lord, Lord Ponsonby, which was moved by the noble Baroness, Lady Chapman of Darlington, and to which I have added my name, is comprehensive. At its heart is the aim in proposed subsection (1) of introducing a statutory duty to provide assistance to those who need help navigating online procedures. That is an adjunct to the importance attached to them in the Bill itself. We of course accept that the Government intend to ensure the availability of assistance with the new procedures and we welcome the introduction of these online procedures. We were also reminded by the noble Lord, Lord Pannick, of the limitations of the procedures that the noble and learned Lord, Lord Keen, promised when he was Advocate-General and we last debated these procedures. Our concern is that what the Bill proposes is very much wider and could, as the noble Lord, Lord Pannick, pointed out, cover family proceedings, proceedings for injunctive relief—almost any proceedings of whatever magnitude. However that might be, the importance of online assistance becomes greater with the importance of the proceedings to the parties.
The noble Baroness, Lady Chapman, talked about digital exclusion by virtue of skills, but it is not only a question of skills. She is absolutely right that many people are unable to handle digital technology through age, disability or vulnerability, as well as, of course, through lack of education or simply not having kept up with advances in technology. There is also the lack of availability of fast broadband and an inability to access the internet in the way those of us who live in areas of fast broadband are becoming completely used to. There is the availability of technology and computers. The answer might be that people can go to their local library, but for many people in rural areas, local libraries are very distant and lacking in decent equipment. It is not enough to say that anybody can access a computer.
That ties in with the financial abilities and means of people who may be litigants. If they do not have the equipment, as well as not having the skills, they cannot access it. For us, the cardinal principle is that no one, however unable to access digital procedures without help for whatever reason, should be disadvantaged by the new procedures. That can only be answered by a duty upon the Lord Chancellor to provide digital and online assistance. There needs to be assistance to a sufficient level that every litigant understands the procedures and how they are to be implemented and is able to have personal, telephone or remote appointments, whatever is necessary, to enable them to participate in procedures at every stage online. As per our amendment, this also means assistance with language in terms of interpretation or translation for those for whom English is not their first language.
An important part of our amendment is the prescription of an annual evaluation of online procedural assistance and the collection of information about how it is proceeding. I add only this: we are concerned to see that it will remain possible to take all steps in proceedings by paper means. This has been promised by the Government, as the noble Lord, Lord Pannick, pointed out. I am confident that the number of those requiring step assistance by paper proceedings will reduce as time passes. However, the ability to take all steps on paper, at any stage, must remain. This is essential to honour the fundamental principle of our justice system that we preserve universal access to enable people to enforce and defend their rights.
Lord Wolfson of Tredegar (Con)
I will first say a word about the amendment which I have put before the Committee. Dispute resolution is fundamental, and it is becoming ever more important. Although the noble Lord, Lord Marks, referred to alternative dispute resolution, as he may have heard me say before, we have sought to drop the “A”. We do not call it ADR anymore, we call it DR, because we do not see it as alternative, like alternative medicine. I can see my postbag about to grow, but I am going to say it anyway: alternative medicine is sometimes seen as somewhat outré and whether it actually works is questionable. Dispute resolution is not unusual; it is now a central part of resolving disputes and we know that it works. We want to ensure that people who engage in dispute resolution can do so online and—I will come to the point made by the noble Lord, Lord Pannick, in a moment—that they can also vindicate their legal rights online when it is appropriate to do so. I give the example that I have given before: there is a small trader who has a debt of £13,000 and the hearing is going to last for 90 minutes. Do we expect that person to take a day off work and go to the local county court and hang around when, instead, they could continue their job and—I was going to say “dial in” for the benefit for the mystery person on the Opposition Front Bench—go online, engage in the court hearing and vindicate their legal rights.
I will come back to the safeguards in a moment. Properly used, the online procedures are a way of enabling people to vindicate their legal rights. In justice, like in many other parts of our society, we have been forced to go online more during the pandemic and we have seen that it can work. The noble Lord, Lord Pannick, talked about when I was previously at the Bar. Before I joined your Lordships’ House, I had to take a three-week trial entirely online. That trial could not—and probably would not—have taken place five years ago, but it took place online. I accept that it was a commercial case, and I will come to the points about family and other cases a little later. However, these proceedings and the Online Procedure Rule Committee are focused on ensuring that the civil justice system can respond to, and is appropriate for, the sort of world in which we now live.
Having said that, the noble Baroness—
Lord Marks of Henley-on-Thames (LD)
I am sorry to interrupt the noble and learned Lord and am grateful for him giving way. May I draw him back to Amendment 38? I completely accept and take on the chin his criticism of my use of the word “alternative”, but I used it as a distinction from procedures by court. I understand his Amendment 38 to be concerned with out of court procedures, with what I used to call “alternative dispute resolution” procedures, but never will again. Nevertheless, it is concerned with integrating, as I understand it, dispute resolution procedures organised by third parties, which are not applicable to the example that he gave of having your rights vindicated by reference to the procedures that are allowed by Clause 19 of having court procedures online, which is slightly different.
Lord Wolfson of Tredegar (Con)
The noble Lord is absolutely right, but I was seeking to make the point more broadly. I will come to the court procedures, but the noble Lord is right: Amendment 38 seeks to ensure that, when people go to pre-court dispute resolution—I think everybody in the Committee wants to encourage that—if the case does not settle in whole or even in part, they can seamlessly transition to the online court procedure. They do not have to repopulate forms or send in new documents. Of course, I emphasise the mediation bit of it remains without prejudice, obviously, that is fundamental to mediation. Amendment 38 is to ensure that there is a set of protocols, essentially, to make sure that we can have that seamless transition. It is part of enabling people to vindicate their legal rights, either by way of an out of court settlement, with which they are satisfied, or by migrating into the online court space.
Lord Thomas of Gresford (LD)
May I assist the Minister with an illustration? Four weeks ago, a close relative was owed a significant sum of money and used dispute resolution procedures. He filled in a claim form online, and the debtor filled in a claim form also online. There was a half-hour hearing on the telephone with a judge who reserved his judgment and fortunately found judgment for my relative very quickly after. It shows that it can be done. In that sort of circumstance, it saves days of problems in filling out written documents and attending at court.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord for his intervention. Absolutely, this is about enabling people to vindicate their legal rights. The Government are conscious—we put a clause in the Bill specifically for this reason—that we need to safeguard those who cannot get online, either because they do not have proper broadband or proper facilities or because they are incapable for whatever reason of using computers.
I anticipated that it would be the noble Lord, Lord Ponsonby, who spoke, so I apologise to the noble Baroness, Lady Chapman for that. She made absolutely the right point. We agree that assistance may well be needed. Although we do not accept Amendment 39, that is because the Bill already places a duty on the Lord Chancellor to arrange for such support. Extensive measures, which I will mention, have been put in place to make sure that assistance is provided to those who need it. We need to distinguish between online procedures, that is, the form-filling applications, and an online hearing. The two things are quite different.
So far as online procedures are concerned, I recognise that some users may find it difficult to use digital services. Therefore, I should make it absolutely clear that there will be no change in the current options to use paper forms and processes. As the noble Lord, Lord Marks, says, the cardinal principle is that nobody will be disadvantaged.
For those who choose to conduct proceedings using paper routes, they will be available in the same manner as at present. At HMCTS, we are improving and streamlining the paper routes and are committed to making sure that the level of service is the same no matter whether litigants are engaging with the justice system through online or offline routes. We will therefore be offering substantial support for those who want to use online routes and who can do so with support.
Lord Falconer of Thoroton (Lab)
I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules
“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”
I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?
Lord Wolfson of Tredegar (Con)
That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.
As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:
“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”
I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:
“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.
I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.
However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.
On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.
I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.
These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—
Lord Pannick (CB)
My concern is not about online hearings, because they do take place and may be convenient in some circumstances; it is that Chapter 2 allows for no hearings at all. It allows for legal disputes, if the Online Procedure Rule Committee so authorises, to be conducted entirely electronically, which means by the submission of arguments in writing. The Minister really needs to recognise that that is authorised by Clause 19. He says that this is only if the independent Online Procedure Rule Committee so decides, but will he accept that, under Clause 22, that committee consists of three people who are appointed by the Lord Chief Justice and three people who are appointed by the Lord Chancellor, so the Lord Chancellor has a very considerable influence over the composition of that committee?
The Minister may be coming to this question. Does it remain the intention of the Government—who clearly have a very influential role in this—that these provisions should be used only for money claims up to £25,000? The origin of that origin, as the Minister will confirm, was the report of Sir Michael Briggs, now Lord Justice Briggs. He investigated these matters and proposed a £25,000 limit which would always apply to this category of case. There would be no hearing. It would be conducted entirely electronically—although perhaps, in exceptional cases, the judge would have a discretion to decide that the matter would be conducted in an oral hearing.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord. He is absolutely right about the three/three appointments, but I would respectfully direct his attention to two features of Clause 22. First, whom the Lord Chancellor can appoint is circumscribed by subsection (4). One of the three has to be a barrister, solicitor or legal executive. The second must have
“experience in, and knowledge of, the lay advice sector”.
The third is somebody
“who has experience in, and knowledge of, information technology relating to end-users’ experience of internet portals.”
The second safeguard is in subsection (7):
“Before appointing a person under subsection (4)(a)”
there is a requirement on the Lord Chancellor to consult with
“the Lord Chief Justice … the Senior President of Tribunals, and … the relevant authorised body.”
So this does not enable the Lord Chancellor just to appoint three friendly faces—although I am sure no Lord Chancellor would do so. They must be people with a particular expertise, and there is a consultation requirement. I accept that the Lord Chief Justice, the Senior President of Tribunals or the authorised body do not have a veto, but, in the real world, it will ensure that we have proper people on the committee.
If I may, I will come back to the £25,000 point in a moment. I am conscious that I want to finish giving the Committee an assurance about assistance, so I will finish this point and then come back to the £25,000 point.
The assistance currently provided by HMCTS is offered over the phone through our Courts and Tribunal Service Centres. HMCTS has also designed and tested a digital support service to ensure that access is available even for those who need more intense support. The contract was awarded to We Are Digital in late 2021. We expect full national coverage by the late spring of this year. Users will be able to attend in-person appointments. It will also be possible for a trainer to attend an applicant’s home for in-home, face-to-face support. If the noble Baroness passes to me confidentially the name of the relevant individual, I might even be able to arrange a home visit. One-to-one video appointments will also be available for those who already have access to online services, as well as the support over the phone. Therefore, I believe that this level of support, combined with the duty in the Bill, is enough to ensure that the digitally excluded receive the support that they need.
Finally, I turn to the outstanding question from the noble Lord, Lord Pannick. I have been able to check while I have been on my feet. The position is that the legislation is not limited expressly to those claims. I am told that they are first in line to be used under these procedures. The noble Lord’s question went further and asked what was anticipated would be done after that. I will write to the noble Lord once I have an answer which I am satisfied is absolutely clear. I am concerned to make it very clear to the Committee that civil justice in particular is going to change. It has changed and it will change. For example, there does not seem to be any clear reason why a claim of £25,000 would be done online and not one of £26,000. One always has to have a limit but, once we accept that justice can be delivered online, the question then is what cases are suitable. I will write to the noble Lord on that.
Lord Falconer of Thoroton (Lab)
The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.
In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.
I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.
Lord Wolfson of Tredegar (Con)
Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.
Lord Falconer of Thoroton (Lab)
What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?
Lord Wolfson of Tredegar (Con)
That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.
I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.
As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.
Lord Pannick (CB)
I am very grateful to the noble Lord. He correctly points out that there are occasions where there is no oral hearing and the judge so decides. Would he not accept, however, that there is a fundamental difference between that and a decision being taken, at the encouragement of the Master of the Rolls and certain others in the legal profession, to do away with oral hearings in categories of case because it is quicker and cheaper to do so?
The noble and learned Lord, Lord Falconer, has made the point but I join with him; it would be a matter of policy and of great significance were a decision to be taken by the Online Procedure Rule Committee that, for example, all civil claims for money are no longer to have oral hearings but to be determined on paper. There need to be some criteria for the exercise of these very broad powers that Parliament is conferring. There is no parliamentary approval of these new rules as I understand it, so it is a matter of enormous concern.
Lord Wolfson of Tredegar (Con)
With respect, of course I understand the point the noble Lord has made, and I will write to try to put a little more flesh on the bones. The last point he makes is in some ways perhaps the most important because I have seen two sides of this coin. The point the noble Lord has just made is that Parliament should have the final say on court procedures because, ultimately, it should not be for judges to decide whether you have a hearing; there should be a parliamentary override.
In a completely separate issue that I have been dealing with, child trust funds, I have sought to have a better procedure in the Court of Protection. It has been quite properly and very firmly pointed out to me that, ultimately, it is a matter for judges, not Ministers or even Parliament, to decide how the courts are run. This is a difficult topic. I take the point the noble Lord has made. I will write to him and the noble and learned Lord, Lord Falconer, and copy it generally to the Committee.
Baroness Chakrabarti
“(4) After subsection (2), insert—“(2A) The coroner is not to decide that the investigation should be discontinued unless—(a) the coroner is satisfied that no outstanding evidence that is relevant to the death is available,(b) the coroner has considered whether Article 2 of the European Convention on Human Rights is engaged and is satisfied that it is not,(c) there are no ongoing investigations by public bodies into the death,(d) the coroner has invited and considered representations from any interested person known to the coroner named at section 47(2)(a) or (b) of this Act (“interested person”), and(e) all interested persons known to the coroner named at section 47(2)(a) or (b) of this Act consent to discontinuation of the investigation. (2B) If a coroner is satisfied that subsection (1) applies, and has complied with the provisions at subsection (2A)(a) to (d), prior to discontinuing the investigation, the coroner must—(a) inform each interested person known to the coroner named at section 47(2)(a) or (b) of this Act of the coroner’s intended decision and provide a written explanation as to the reasons for this intended decision,(b) explain to each interested person known to the coroner named at section 47(2)(a) or (b) of this Act that the investigation may only be discontinued if all such interested persons consent, and(c) invite each interested person known to the coroner named at section 47(2)(a) or (b) of this Act to consent to the discontinuation of the investigation.””Member’s explanatory statement
This amendment would ensure that certain safeguards are met before a coroner can discontinue an investigation into a death and that family members and personal representatives of the deceased are provided with the coroner’s provisional reasons for why the coroner considers that the investigation should be discontinued, helping ensure that family members make an informed decision as to whether to consent to the discontinuation.
Baroness Chakrabarti (Lab)
I am conscious that the Committee is valiant and well into the third hour of today’s proceedings; nevertheless, the next is a very important group. We are now in Chapter 4 and we are not talking even about £25 million; we are talking about life and death, bereaved families and the vital work of our coroners’ courts. We are talking about provisions that will broaden the circumstances in which coroners may discontinue their investigations. We are talking, once more, about the power to hold inquests on the papers, in writing only, and we are talking about the wider use of remote hearings. Amendments 40, 42 and 43 are in my name and I am honoured to share those with my noble friend Lord Ponsonby and maybe even my noble friend Lady Chapman of Darlington as well—I am doubly honoured. I also have the support, I am delighted to say, of the noble Lord, Lord Thomas of Gresford, for the Liberal Democrats.
Further amendments in this group are about providing an appeals process for families who disagree with discontinuance, about ensuring that there are no audio-only inquests, even within the class of remote inquests—no telephone or audio-only inquests—and to ensure that remote hearings are still accessible to the public. Amendment 53 ensures pre-implementation consultation before the remote inquests come into effect. The noble Lord, Lord Thomas of Gresford, supported by his noble friend Lord Marks of Henley-on-Thames, has a very important amendment to ensure a right of address for bereaved families. I do not see the right reverend Prelate the Bishop of St Albans in his place, but he may appear in the way that only the Lords spiritual can, and his Amendments 50A and 50B contain important provisions in relation to cases of death by suicide. The indefatigable Minister will speak to his provisions on the register of deaths, which will be important; there are things to tidy up there where an inquest has been discontinued.
I turn to Amendments 40, 42 and 43 in my name. Amendment 40 is about ensuring vital safeguards before a coroner can discontinue an investigation into a death. I hope I do not need to go into too much detail about why safeguards are important in such a scenario, but these include ensuring that family members and personal representatives of the deceased get at least a provisional indication of why this is to be the case, so that they can evaluate whether they support the discontinuance of an inquest. Amendment 42 ensures that inquests will not be held without a hearing—in other words, not on the papers only—if this is against the wishes of the bereaved family. Amendment 43 ensures safeguards before there can be a remote hearing, including by giving interested persons the reasons for that judgment.
I say to the Committee that we need to remember the position that bereaved families, in particular, and other interested parties are in when there is an unexplained or unnatural death. I commend the briefing that will have been provided to, I hope, all members of the Committee by the NGO Inquest. It has done vital work in this area for many years. I remind the Committee that legal aid is not available to these families, and it has often been inquests, over the years, that have been the sole source of support and advice to them. Sometimes these will be deaths in custody, deaths in hospital or deaths in other circumstances where people were very vulnerable and looked after, especially by the state to begin with, before that unnatural and unexplained death happened.
Lord Thomas of Gresford (LD)
My Lords, the office of the coroner has evolved over 1,000 years since William the Conqueror introduced it. There were too many dead Normans lying about attacked by Saxon villains. The coroner inflicted a fine called murdrum on a community where a dead body was found. The deceased was presumed to be Norman under the presumption of Normanry, unless the community, by the presentment of Englishry, could avoid the fine by showing that the deceased was English, in which case it did not matter.
The problem is that traces of these ancient procedures continue to dog the present and to provide cover to government not to recognise the realities of coroners’ proceedings today. Coroners today will tell you that their duties are confined to determining who the deceased was and how, when and where they came by their death. But it is not as simple as that. The thread that runs through this chapter on coroners in this Bill is the lack of concern for the interests of the bereaved, particularly the involvement of the family. The Commons Justice Committee reported last year, and Section 3 of its report is entitled:
“Putting bereaved people at the heart of the Coroner Service”.
This Bill does not even begin to do that.
The evidence given at an inquest and the decision of the coroner or a coroner’s jury has many consequences. When the family of the deceased arrive at the coroners’ court, they will frequently find that skilled advocates are representing a hospital, the police if there has been a death in custody, the insurers of a potential defendant in a road accident or insurers where there may be defects in a stadium, a block of flats or other structure. The evidence given on oath before the coroner may be crucial in determining an allegation of assault or negligence or, where the suggestion is suicide, whether life insurance will be paid out to the dependants. A finding in a coroners’ court frequently determines whether the dependants of the deceased can settle a claim for compensation quickly and without stress or whether they have to go through the agony of a court case.
I turn to Amendment 40. Currently, as the noble Baroness, Lady Chakrabarti, said, the coroner can discontinue an inquest only after the results of a post-mortem have been delivered to him unless he suspects a sudden and violent death or a death in the custody of an organ of the state, such as the police. Clause 38 of this Bill now extends his discretion to discontinue by the use of wide words: if the
“cause of death becomes clear”
before inquest. Under this Bill, all the family receive is a statement of reasons. The purpose of this amendment is to ensure that, before the coroner makes his decision to discontinue, he has made all proper inquiries, and ensured that there are no ongoing investigations into the death, such as a hospital inquiry, and crucially that the family have been given the opportunity to make representations and actually consent to the discontinuance.
I think the Explanatory Notes are disingenuous when they suggest that an inquest adds to the distress of the bereaved family. Certainly, there is distress, but a decision to discontinue, taken above their heads and without their participation and consent, may very well cause much greater distress.
I come to Amendment 41. We are all aware of the struggles of many families to obtain an inquest through the courts by way of the discretionary remedy of judicial review. Amendment 41 provides for rules to establish an appeals process for those who disagree with the decision to discontinue. To succeed in the Bill as currently drafted, they would have to establish that the cause of death is not clear. What does that mean? What may seem clear to the coroner may not be clear to the family at all. If Amendment 40 is carried, the need for appeal would be considerably lessened since all interested persons known to the coroner would have been notified of his intention to discontinue prior to the inquest and would have consented to it. Appeals could then be brought only by interested persons who had been overlooked. That is possible but very rare.
I turn to Clause 39 and Amendment 42, where the theme continues. The decision of a coroner to determine that a hearing is unnecessary and may be determined in writing should also involve the consent of the bereaved: put the bereaved at the heart of the coroners service. Proposed new subsection (2)(a), to be inserted by Clause 39(2), requires the coroner to invite representations from known interested parties before he makes his decision, while (2)(b) deals with situations where no representations have been made and (2)(c) deals with situations where there is a disagreement between interested parties. That is what the Bill talks about, but nothing is contained in the clause about the position where all the interested parties oppose the coroner’s notification of his intent to determine the issues in writing on the papers, much less a requirement that they all consent. Amendment 42 would deal with those omissions.
Amendment 43 to Clause 40 again seeks to involve the family in the decision to hold remote inquests. First, they should consent. Secondly, the coroner should be assured that such a hearing is in the interests of justice, in particular that the issues are not too complex and interested persons are able to use to technology involved. Thirdly, the coroner should give his reasons in writing. However, a remote hearing has this disadvantage: the family are not open to the support services that would be available at a live hearing. The Commons Justice Committee recommended at paragraph 66 of its report that
“local volunteers in the Coroners’ Courts Support Service”
use their skills to assist the bereaved and commented that that service is not centrally funded, nor available everywhere.
Amendments 44 and 45 emphasise the public interest in inquests. If held remotely, they should not be held simply by telephone and absent the public. The rules require that inquests be held in public, except for reasons of national security.
Amendment 50, after Clause 42, is an amendment in my name to delete Rule 27 of the 2013 rules, which states:
“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”
I have been present at a number of inquests and have always found this to be quite extraordinary. Deborah Coles, the director of Inquest, told the Justice Committee about her experience of a culture of “defensiveness” on the part of public bodies:
“Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report … There is much more concern for reputation management, rather than a meaningful search for the truth.”
In my experience, it is much the same with employers who seek to limit their liabilities. “Well,” you might say, “so much the better if they cannot address the coroner.” However, they often make submissions on facts dressed up as submissions on process. Where both sides are represented, the coroner should be helped by submissions made by both sides to clarify issues of fact and make points about the evidence that has been heard; those points may be crucial to the issue of liability. Whether both sides are represented and there is equality of arms is a matter that we shall come to in the debate on the next group.
Lord Beith (LD)
My Lords, I agree with many of the points my noble friend has made. He made a particularly forceful point about addressing the jury at an inquest. It seems an absurdity that the law is in that state; I will come back to the encrusted historical nature of the law on coroners in a second.
I will add to what my noble friend said, although it might seem a slightly conflicting point. It is simply that the circumstances can be very different in so many of these cases. From my experience of inquests and dealing with families going to inquests, I have often come across the circumstances so vividly described by the noble Baroness, Lady Chakrabarti, of those who do have any equality of arms and are dealing with a major public sector body or a private organisation with great resources. There are other families for whom an inquest is just another liability they do not want at a time of maximum grief. If there are no grounds for holding an inquest or drawing them into that procedure, we do not want to make life more difficult for them at a time of very real grief.
Lord Falconer of Thoroton (Lab)
I strongly agree with the noble Lord, Lord Beith, but I understand that he does not contest any of the propositions put forward by my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford. They are dealing with cases where people are desperate to find out what happened and want a proper hearing.
I underline the point made by the noble Lord, Lord Thomas of Gresford, which is that the key issue here will be in the next group dealing with the provision of legal aid, where appropriate, in cases where there is a dispute. We are not talking about that now, but it is vital to there being a level playing field.
This group of amendments is, in effect, trying to bring the coronial system into line with its current role to allow a proper contested hearing, where appropriate, if there is an issue about the cause of death, rather than it being the administrative process it previously was. There needs to be that change.
The biggest example of why these amendments are right and the Government’s position is wrong is in the amendment proposed by my noble friend Lady Chakrabarti on what is currently Clause 38. Clause 38 amends Section 4 of the Coroners and Justice Act 2009. The 2009 Act allows the coroner to stop an investigation where the cause of death becomes clear after a post-mortem examination. Section 4 also provides that the coroner can, if asked, give reasons after he has discontinued the investigation. That is not apparent in this Bill, but comes only in Section 4 of the 2009 Act.
Based on not just a post-mortem examination but any other matter the coroner thinks relevant, if he is satisfied that the cause of death has become so clear that he thinks an inquest is no longer appropriate, he can simply stop the whole investigation, without reference to the family, even if they are desperate for an inquest. The coroner’s only obligation is to explain why he or she did that after the event. That is the effect of Clause 38, so my noble friend Lady Chakrabarti is absolutely right to say there should be safeguards, and the key safeguard is that proposed in Amendment 40, subsection (4)(2A)(d):
“the coroner has invited and considered representations from any interested person”,
which would include the family. Why do the Government not think there should be such a requirement? What is the purpose of a justice system that can reach a decision without hearing from interested parties, and whose only obligation is to explain why it took that decision after it has been made, without giving the family the opportunity to comment?
Baroness Chapman of Darlington (Lab)
My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.
As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.
We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.
The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.
My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:
“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]
So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.
Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.
Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.
Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.
We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.
Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.
Baroness Chakrabarti (Lab)
Subject to the views of the Committee, that sounds eminently sensible. In case it is necessary, perhaps I might say that I support those amendments and would not want to deprive the right reverend Prelate of the opportunity to bring them back to the House at a later stage.
Lord Wolfson of Tredegar (Con)
I was not seeking to take any procedural point. Rather than take time this afternoon, because we have not had a debate on the amendments, I will set out the position in writing and copy the letter appropriately.
Before taking the amendments in turn, perhaps I may make an important point which is central to this discussion, which is that coroners—
Baroness Chapman of Darlington (Lab)
I am sorry, I know that we are pushed for time and there are important matters that we want to get on to. I do not know about other noble Lords, but I would appreciate hearing the Government’s position on Amendments 50A and 50B. Is that possible?
Lord Wolfson of Tredegar (Con)
It certainly is. I had prepared to respond to the amendments and am happy to do so if the Committee finds that more helpful. I see some nodding heads, in which case I will do it that way instead. I will obviously direct the right reverend Prelate to Hansard. I am very grateful.
A central point which is really important is that coroners are judicial office holders—whether they go back to William the Conqueror is not directly relevant for these purposes, although it was interesting. That point is important: they are not administrators or decision-makers; they are judicial office holders. Ultimately, it is therefore up to the coroner, circumscribed by statute, how to conduct their investigations and inquests. I respectfully ask the Committee to bear that in mind when considering a number of these amendments, to which I will now turn.
Lord Thomas of Gresford (LD)
The Minister has said we want coroners’ inquests to remain inquisitorial. In practice, they are adversarial. The ancient position of a coroner does not allow the proper adversarial safeguards to be in place. I would like the Government to rethink that position and consider whether it is appropriate at this time.
Lord Wolfson of Tredegar (Con)
I can accept two points there. I can accept that I and the Government will reconsider it. We certainly will think about it. This is a bit of a chestnut point, if I may say so; it has been discussed on a number of occasions. But the Government’s current position is that we want coroners’ inquests to be inquisitorial and not adversarial. Secondly, I accept, as a consequence of that, that we do not have adversarial safeguards. But that is consequent on the first point; the inquests are not adversarial.
There is a real problem, I would suggest, in changing the nature of a coroner’s inquest to being adversarial. I accept there will be particular inquests where it is appropriate for people to be legally represented. I do not want to mix the groups up, but we will discuss in the next group the issues of legal aid, exceptional case funding, et cetera. But the central fact is that the inquest is there to determine who the deceased is, where he died—I will say he—when he died and how he died, but not why he died. That is an important point.
Baroness Chapman of Darlington (Lab)
We are getting to the heart of it, in a sense, because the Government contend that these processes are not adversarial. I understand why they are doing that. However, I am increasingly of the impression that what the Minister has just said has absolutely no grounding in reality. The lived experience of extremely vulnerable people in this context reveals that the processes are deeply adversarial. Their experience does not align with what the Minister has just said. It is unfortunate that the Government do not seem able to appreciate this in their consideration of these amendments.
Lord Wolfson of Tredegar (Con)
Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—
Lord Falconer of Thoroton (Lab)
Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.
Lord Wolfson of Tredegar (Con)
The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.
This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.
To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.
Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.
As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.
Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—
Baroness Chapman of Darlington (Lab)
That is not the intention; it is that the hearing in its entirety should not be conducted by audio only. The amendment would not prevent someone participating by audio only.
Lord Wolfson of Tredegar (Con)
I am grateful for that clarification, but the same point would apply. If the only people who are interested—I am using that word in the technical sense—in the inquest can participate only by audio link, the coroner would have to either not hold the inquest and adjourn it or hold it, so to speak, in a room, despite those interested people not being able to be there. I will consider again whether what the noble Baroness has said resolves my concerns, but I do not think that it does. Certainly, we are concerned to make sure that an inquest can still go ahead when, for some reason, everyone relevant can participate only by way of audio.
I assure the noble Lord, Lord Thomas of Gresford, that what underpins this and Parliament giving coroners these powers is concern for families. We want people to be able to participate, and we are conscious that some people may only be able to participate through technical means or audio only.
Amendment 45 seeks to ensure that remote inquest hearings and pre-inquest hearings are heard in a manner that is accessible to the public. In this regard, Clause 40 is designed to complement Clause 166 of the Police, Crime, Sentencing and Courts Bill, which is currently in the other place. Clause 166 provides for wider remote participation in court proceedings, under the direction of the court, and it covers a number of courts, including coroners’ courts. So, Clause 166 will ensure that justice remains accessible to the public, regardless of how the hearing is conducted. Again, the Chief Coroner will provide additional guidance on the use of remote hearings to ensure that coroners’ inquest hearings remain accessible to the public, as set out in Rule 11 of the Coroners (Inquests) Rules 2013.
Lord Beith (LD)
It is not just human nature; it is the practical difficulty of registering deaths and making appointments in coroners’ offices, because registrars’ and coroners’ offices have very limited not just opening hours but opening days. This has been particularly marked during the pandemic.
Lord Wolfson of Tredegar (Con)
I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.
To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.
For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to every Member of the Committee who participated, in particular to the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton, for crystallising the fundamental inequality of arms that exists in so many inquests. Regardless of jurisprudence or terminology, that is how it is and how it feels for these families.
I am grateful, too, to my noble friend Lady Chapman of Darlington for making it crystal clear that evidence that cannot be challenged is going to be a huge problem, not least for compliance with Article 2, and for reminding us of the tragic case of Laura Booth, which is in the Inquest briefing in case noble Lords want to read it at leisure. There are other tragic cases of that kind, where, but for close scrutiny and the testing of evidence that initially seemed very straightforward, some real public interest problems, whether in our hospitals or elsewhere, would not have been revealed.
I am only slightly disappointed that the very busy right reverend Prelate disappointed my hope that it would be possible for a Lord spiritual to be in two places at the same time. None the less, I am very happy to take care of his amendments and ensure that he has the opportunity to bring them back next time. I think that is the right thing to do.
The Minister will forgive me, I hope, for being disappointed in the 100% defensive rebuttal of every single concern raised in this Committee. He reminds us that coroners are judicial officers and not mere administrators; of course, he is right about that. But he says that in total rebuttal of every safeguard and gentle constraint suggested—for example, the discretion to discontinue these vital investigations.
I cannot help but point out the contrast in the Government’s approach to this part and, for example, to Clauses 1 and 2. In Clause 1 we are told that it is perfectly acceptable for the legislature to constrain judicial thinking and discretion in quite convoluted ways, but here, when we want to put the needs and concerns of families into the equation, we are told that it is somehow an inappropriate constraint on the wonderful, inquisitorial, coronial province. We are reminded that coroners are inquisitorial and not adversarial, as if these terms of art are set not in aspic but in stone. I do not really care whether these are technically inquisitorial or adversarial—you can call them “Doris” as far as I am concerned. There are vital rights and interests being explored in this jurisdiction.
I am sorry to say that I do not know whether the government position is science fiction or space fantasy. In many cases these proceedings are tantamount to very difficult quasi-adversarial proceedings, but one side is silent. One side is silent because it does not have the language and resources to put its side of the picture. This is exacerbated in cases where very defensive public authorities, understandably, are heavily represented by Silks and so on. We cannot say that the full answer to that problem will be a technical, jurisprudential definition of inquisitorial versus adversarial proceedings. That is not reality at this moment in the 21st century.
I gently ask the Minister to consider meeting some representatives of the unrivalled NGO Inquest before Report. That organisation and those working within it have done so much work over the years with a number of bereaved families. I am sure they would at least help illuminate the Minister’s understanding of what some of these most difficult inquests are like for ordinary people. That would be my request to him. None the less, for the moment—but only for the moment, because having heard from my noble friend Lady Chapman and from the Liberal Democrats, I suspect that the Committee will want to return to this group on Report, and I obviously preserve the position for the spiritual Benches opposite—I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
“Provision of information to registrar when investigation discontinued
In section 23 of the Births and Deaths Registration Act 1953 (furnishing of information by coroner in connection with registration of death), after subsection (3) insert—“(4) Where a senior coroner— (a) discontinues an investigation under section 4 of the 2009 Act,(b) authorises the disposal of the body, and(c) sends to the registrar, on request by the registrar, a certificate stating any particulars required by this Act to be registered concerning the death (so far as they have been ascertained at the date of the certificate),the registrar shall in the prescribed form and manner register the death and those particulars, so far as they are not already registered.”Member’s explanatory statement
This new Clause enables a coroner who has discontinued an investigation into a death without holding an inquest to supply information needed for the death to be registered.
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Baroness Chapman of Darlington (Lab)
My Lords, with the permission of the Committee, my noble friend Lady Chakrabarti and I have had a conversation and, in order to move things along, we have agreed that I will speak to her Amendment 49 as well as Amendments 47 and 48.
Having listened to the Minister’s response to the last group, I am incredibly disappointed at the lack of willingness to engage on the issues we were discussing. I really do not hold out much hope on this group, but these are matters that are of such importance. We have tried pushing this issue in the past via other Bills. Perhaps Covid and perhaps just more understanding and the work of Inquest are getting us to a point where the pressure to resolve this problem is increasing substantially. I know that the Minister understands the point we are trying to make. I get that he has a position he needs to defend, but he understands where we are coming from, so it would be welcome if he could try to do something through this Bill to try to improve the situation for bereaved families at inquests.
Amendment 47 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies, such as the police or hospital trusts, are legally represented. Amendment 48 would remove the means test for legal aid applications for legal help for bereaved people at inquests. Amendment 49 would insert a new clause that would bring the LASPO Act into line with the definition of family used in the Coroners and Justice Act 2009.
The problem that we are getting at with these amendments is well understood. There are plenty of examples to which we can all refer. This is fundamentally about fairness. I pay tribute to the work of Inquest—we have referred to that organisation a couple of times—which has worked so hard on more than 2,000 cases, with 483 families currently receiving its support.
People who die in police custody, prison, hospital, a care home or a disaster such as Grenfell or Hillsborough need support in order to secure effective understanding and scrutiny of what has taken place. At Second Reading and again just now, the Minister said that the state did not need to fund representation for families as our system is not adversarial. I do not want to go through the whole argument again, but it is just nonsense. If relatives have to fight to discover the truth about what has happened to their loved one, with lawyers putting events in a way that suits the institution and with points that are contestable not allowed to be contested, that is in effect adversarial. The family’s desire to uncover the truth and the institution’s desire or need to conceal it, or to be insufficiently curious about discovering what has happened, are competing aims.
The two parties—I am not going to get into what and what is not a party: we know what we are talking about—might not be adversaries in a formal legal sense, and we understand that, but their competing, different interests mean that there is an inequality of arms which results in injustice for a bereaved family. That is what is happening. I do not believe for a minute that the Minister thinks I am wrong about that; it is just that at the moment he does not feel able to move the Government forward to do something about it.
Inquests are intended to seek the truth and to expose unsafe practices and abuses of power. They are about learning, so that lessons can be taken and future deaths prevented. This opportunity to learn is undermined by the pitting of unrepresented families against multiple legal teams defending the interests and reputations of state and corporate bodies. Public bodies have unlimited access to legal representation at public expense. Too often, families have absolutely nothing. At one of the most difficult periods in a family’s life, they are unrepresented.
Legal aid is granted under the Government’s exceptional funding scheme only if it is considered that there is a wider public interest in the inquest or if it is an Article 2 inquest, where a death was in state custody or it could be argued that the state failed to protect someone’s right to life. It must also meet the financial means test. Removal of the means test in these cases will be helpful, but given that asking people to demonstrate Article 2 qualification is such a high bar, this will not be sufficient to correct the injustice that many families are experiencing now. The evidence for change is completely overwhelming. I hope the Minister will not rely solely on the adversarial/inquisitorial argument. Frankly, it is beneath him. I hope that he will feel able to persuade his colleagues of the need for change. I will say no more. I think that is sufficient to make the point today, but I do not see a situation where we will not come back to this on Report or in future Bills. I gently suggest to the Minister that we have a Queen’s Speech coming up. This is such a problem for the coroners service across the country that it might be worth a Bill in its own right. We could then do justice to the service and to the experience of bereaved families. We are not doing so at the moment.
Lord Thomas of Gresford (LD)
My Lords, in the mists of time I was articled to Maurice Evans, who was the coroner on the inquest of the 266 miners who lost their lives in the Gresford disaster. The mine owners were represented by Hartley Shawcross, later the chief prosecutor at Nuremberg, Attorney-General in the Attlee Government and after that a very distinguished Member of this House. On the other side for the miners there appeared pro bono Sir Stafford Cripps, who later became the Chancellor of the Exchequer in the Attlee Government. There was equality of arms there. That is what it means, that is what it is about and that is what these amendments are about.
Inquest has very helpfully set out a schedule to its briefing in which it outlines what representations have been made over time. In 1999, Lord Macpherson in the Stephen Lawrence inquiry said:
“That consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.”
That is 23 years ago. The Corston report and the review led by the noble Lord, Lord Harris, made similar recommendations. His Honour Judge Sir Peter Thornton QC was the first Chief Coroner appointed and I knew him very well; he was in my chambers. He made his report in 2015-16 and said:
“The Chief Coroner … recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance … so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”
You could actually take that and make it the amendment we are seeking to put before the Government. Dame Elish Angiolini carried out an independent review of deaths and serious incidents in police custody in 2017 and put it this way:
“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.”
The right reverend Bishop James Jones in the Hillsborough review said that:
“Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented … the requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available.”
I could go on because there are a large number of these quotes but, coming closer to the present time, the Joint Committee on Human Rights in 2019, considering the detention of young people with learning disabilities and autism, said that:
“Families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons.”
The Justice Select Committee, reporting last year in the other place, said:
“Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”
Your Lordships will see that this is not a single voice calling. Everybody who has looked at this particular problem realises that there is no equality of arms, as there was in the Gresford disaster inquest, and that families suffer as a result. They cannot put their case adequately. It is time that the Government should grasp this and not go back to talking about coroners being inquisitorial, therefore we cannot have proper legal representation and so on. It is just shutting your eyes to what is going to happen, and I am sure it is going to happen with the quality of advocacy of Inquest and other people. I hope it will happen through this Bill if we can get together and put the proper amendment forward.
Baroness Jones of Moulsecoomb (GP)
I do not want to repeat anything that the noble Baroness, Lady Chakrabarti, said in her moving contribution earlier, nor anything said by the noble Lord, Lord Thomas of Gresford, but perhaps I can remind the Minister that we are talking about people who do not have much money and are often in the worst position of their lives, in that they have lost somebody whom they loved very deeply. They are not at a point in their lives where they can cope with the sort of the pressure that the Government are making happen to them. Honestly, the Government are so penny-pinching when it comes to things like this—and student education; indeed, any number of other things—yet they do not make multi- nationals pay their taxes. I do not understand why we ever think that Conservatives are good at running the economy; I think that they are rubbish.
Every death in custody, of any sort, means that a family is bereaved. They may therefore not be thinking clearly and may be extremely upset. For them, the injustice is perpetuated and they are re-victimised because the inquest system is unable to give them the sort of justice they need. Without equality of arms against state parties, effective justice is extremely difficult to achieve. These issues come up time and again; the arguments are well rehearsed. The Government have access to unlimited public funds to instruct the very best lawyers, while the bereaved must navigate complicated legal aid applications in the vague hope that they might be awarded a scrap of money towards their legal costs. It just sounds so mean. It is absolutely mean of the Government. Far too often, the outcome is that inquests and inquiries are seen to have resulted in a damage limitation exercise—an exercise in saving reputations and finding excuses.
I had a grandfather who was killed in the Senghenydd mining disaster. Some 440 men and boys were killed in 1913. The mine owners were brought to court on various issues and paid a total of five and a half pence for every life lost in the mine. This debate reminds me of that: we just do not understand the sort of pressure that we put on people when we do not allow them the legal means to achieve what they need to achieve. It is a bit like the Sue Gray report. Everybody is told that they have to wait until the inquiry is finished but there is another excuse and another delay until, possibly years later, the authorities and everyone have simply forgotten about it.
Here, of course, we all want justice to be done. We all want life to be fair—that is why I am in politics, anyway—but these proposals are not fair. I really hope that the Minister will meet Inquest members because they can give him a first-hand understanding of the pressure and pain that families experience. Justice will not be seen to be done until families are given automatic, non-means-tested legal aid on a footing equivalent to that provided to state parties.
Lord Hacking (Lab)
My Lords, if noble Lords will permit me, I would like to make a short intervention. I have not taken part at all in the debates on Part 2 because I wanted to find my feet more in this House. I do so as a member of the council of Justice and, until recently, president of the Civil Court Users Association. I certainly intend to get further involved on Part 2 when we get to Report.
To go back to what the noble Lord, Lord Thomas of Gresford, said, in the mists of time I was called to the Bar in 1963, and in the 1960s and 1970s, legal aid was one of the most socially important provisions that the Labour Government of 1945-51 had brought in. The other one, of course, was the National Health Service and it has been treading backwards ever since that Labour Government went out of power. It is very sad. I remember sitting on a lot of legal aid cases. The problem with legal aid cases was not the lack of spread of legal aid; it was the slowness of the fees coming in. Sometimes they took 18 months or two years to come in, but they did come in and they were very highly supportive of those involved in legal aid. As we see now, particularly in our discussions of coroners, legal aid is no longer supplying the social need that it set out to do, successfully, in 1945. It gets ever more depressing that there is not further support or further money available to support legal aid now, in our present age of the 2020s.
Lord Wolfson of Tredegar (Con)
My Lords, the amendments in this group, Amendments 47, 48 and 49, would introduce three new clauses on legal aid for inquests. Let me make two points right at the start. First, we have now heard about two colliery disasters. The Gresford disaster was something that my late grandfather used to talk about, although he was from south Wales and not north Wales. As a boy, and I have just been looking it up, one thing that stuck with me when he talked about it was the numbers: 266 people were killed in that disaster. Only 11 bodies were recovered because of the understandable, albeit controversial, decision to seal the districts. I remember as a young boy hearing him talk about how that added immensely to the grief that the families went through, because there was no body to bury. I was very moved, if I may say so respectfully, by the noble Lord’s reference to that.
Secondly, as a matter of introduction, it has been suggested by a number of noble Lords that I should meet Inquest. I hope I have established that my general approach is to meet anybody who reasonably wants to meet me. I would be very happy to meet Inquest; I will ask my office to arrange that. Of course, I am sympathetic to the difficulties facing all bereaved families. We certainly take the view that the bereaved family should be at the heart of any inquest process that follows a death. I set out on a previous group, and I will not repeat, the inquisitorial point: I know that is an issue on which we are not going to agree, so I just ask the Committee, respectfully, to take that as read.
It is against that background that I suggest that Amendments 47 and 49, which seek to expand access to legal aid at inquests, run counter to that approach. There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the majority of cases, prolong the distress of a bereaved family. I think it is important to recognise in this area that for every inquest such as that for Hillsborough—the Committee will appreciate that with my background I remember Hillsborough and I remember that night, as the news came in, very clearly—for every awful case like Hillsborough, there are thousands of, so to speak, normal, usual inquests up and down the country and we want to make sure that they remain inquisitorial. However, we recognise that inquests need to be a process that bereaved families can engage with properly. We have introduced a number of measures in this area; let me set out a few.
We have engaged with the Chief Coroner on training for coroners and their investigating officers; we have published new guidance on coroner services for bereaved people; we have developed a protocol which, among other things, ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach; we have, building on the protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September last year.
Turning to legal aid and legal advice and assistance: for bereaved families who need advice and assistance, legal help is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask.
For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme, where certain criteria are met. Where those criteria are met, the Government are of the view that the process should be as straightforward as possible. I do not know whether Members of the Committee have picked this up, because it is very recent, but as of January this year there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted. I appreciate that does not go as far as the amendment, but I hope it indicates that the Government have considered this and moved in this area.
Amendment 48 seeks to remove the means test for legal help prior to an inquest hearing. I have just said that as from January there is no means test for legal representation granted under the exceptional case funding scheme. This change will also provide non-means-tested legal help in relation to an inquest for which exceptional case funding has been granted for legal representation.
I hope that Members of the Committee are aware that we have been conducting a review of the legal aid means test as a whole across civil legal aid, which has been a substantial piece of work. I cannot give a date, but I hope that the review will be published very shortly. It might not go back to the position which the noble Lord, Lord Hacking, set out, but I hope that when Members of the Committee see the review, they will be interested in it and that it will engender some broad support.
Lord Wolfson of Tredegar (Con)
The noble Lord has not read it yet, but I will take the bravos in advance in case I get brickbats later. I hope it will be a piece of work which will find support. Given that ongoing work and while recognising there is a point of principle between us—I absolutely accept that—none the less, for today’s purposes, I respectfully invite the noble Baroness, Lady Chapman, not to press the amendments.
Baroness Chapman of Darlington (Lab)
Clearly, we will not push the amendments to a vote today. It is pleasing to hear the Minister recognise the problems that we are raising, so at least we have got somewhere. Too often, Ministers say, “Well this isn’t a problem; we don’t need to fix it”. I do not think that is what the Government are saying. I am pleased that the Minister has agreed to meet Inquest; that will be very helpful. We obviously reserve our right to come back to this matter at future stages.
Lord Etherton
“Pro Bono Representation: TribunalsPayments in respect of pro bono representation: tribunals
(1) Section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation) is amended as follows. (2) In subsection (1) after “civil court” insert “or tribunal”.(3) In subsection (3)—(a) after “the court” insert “or tribunal”; and(b) after “in respect of that part)” insert “, but so that no award made under this subsection may exceed the amount that the court or tribunal could order to be paid in respect of R’s representation of P, had such representation not been provided free of charge in whole or in part”.(4) In subsection (4) after “the court” insert “or tribunal”.(5) In subsection (5) after “the court” insert “or tribunal”.(6) In subsection (7)—(a) after “Rules of court” insert “and tribunal rules of procedure”;(b) omit the word “civil”; and(c) after “the court” insert “or tribunal”.(7) In subsection (10)—(a) in the definition of “legal representative” for “exercising a right of audience or conducting litigation on the party's behalf” substitute “, who has a right of audience or has the right to conduct litigation in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts, whether or not the person is exercising such right in the particular proceedings”;(b) in the definition of “relevant civil appeal”, after paragraph (a) insert—“(aa) from the Upper Tribunal in accordance with permission granted under section 14B(3) of the Tribunals, Courts and Enforcement Act 2007 (appeal to Supreme Court),”; and(c) after the definition of “relevant civil appeal” insert—““tribunal” means—(a) the First-tier Tribunal;(b) the Upper Tribunal;(c) an employment tribunal;(d) the Employment Appeal Tribunal;(e) the Competition Appeal Tribunal; and(f) any other body, established under or recognised by any enactment, which performs the function of determining matters, which are not criminal in nature, including but not limited to regulatory and disciplinary issues, and which has the power to make an order for the payment of costs.””Member’s explanatory statement
These new provisions will confer on tribunals the same power as civil courts and the Supreme Court currently have to order an unsuccessful legally represented party to pay pro bono costs to the prescribed charity the Access to Justice Foundation where the successful party has been represented pro bono.
Lord Etherton (CB)
As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.
We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.
On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.
Baroness Chapman of Darlington (Lab)
Similarly, I indicate our hope that the Government will bring something forward. Should that not be the case, we will happily play our part in doing whatever we must to move this on.
Lord Wolfson of Tredegar (Con)
My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.
I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.
As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.
There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.
Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.
Lord Etherton (CB)
I think there is nothing more to say. I am very grateful to the Minister for those indications, and on that basis, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment provides for the new Clause after Clause 42 in the name of Lord Wolfson of Tredegar to be brought into force by regulations.
Judicial Review and Courts Bill
Thursday 31st March 2022
(2 years, 7 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 120-I Marshalled list for Report - (29 Mar 2022)
14:15 - Division on Amendment 1 - Ayes: 148 / Noes: 143 - Amendment 1 agreed.
14:28 - Division on Amendment 4 - Ayes: 159 / Noes: 134 - Amendment 4 agreed.
15:18 - Division on Amendment 5 - Ayes: 146 / Noes: 132 - Amendment 5 agreed.
16:44 - Division on Amendment 25 - Ayes: 136 / Noes: 112 - Amendment 25 agreed.
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Lord Marks of Henley-on-Thames (LD)
My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.
This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that
“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,
and of new subsection (5), which says that
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.
I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.
Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.
That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.
Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.
It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.
That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),
“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
The Minister’s only answer to this conundrum in Committee was that it was
“almost incomprehensible that a court would use”
the power
“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]
That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.
In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right
“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”
We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.
Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.
I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.
This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.
I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered
“in relation to the relevant defect”,
the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.
Lord Etherton (CB)
In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.
Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.
In Committee, the Minister said that subsection (9) is not a presumption in the sense of
“trying to fetter judicial discretion or to steer … the courts to a particular decision.”
He said that it will be
“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]
and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.
One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).
Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.
That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.
Lord Faulks (Non-Afl)
My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.
The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.
I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.
The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.
The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.
So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.
Baroness Jones of Moulsecoomb (GP)
My Lords, as I have reminded your Lordships’ House before, I have no legal training and so I will use very simple language here.
I have a huge amount of respect for the noble Lord, Lord Wolfson, and I just cannot believe that he is going to convince the House that the Government are right on this because even from a simple point of view, which is what I am going to express, it seems an unjustified attack on the rule of law. Clause 1 is wrong in essence. The noble Lord, Lord Faulks, mentioned an extra club in the bag for judges. I immediately thought of one of the clubs that early humans would have carried around to kill wolves or whatever, but of course he meant a golf club. I can see that he might think an extra golf club is useful, but judges do not need it. Judicial reviews are already difficult, by design, to bring. There are very short timescales in which any claimant can initiate proceedings, and this will reduce the impact on certainty of decision-making. The Government want these hurdles to still be in place, making it hard to win a claim, but now even if you win there is almost no point in bothering.
Restricting judicial reviews in this way will undermine good government. It prevents justice for people who have been done wrong by public authorities, and it lets wrong decisions stand, even where those decisions were unlawful, irrational or procedurally unfair. Democracy goes only so far. Without being tied to the rule of law, we face the tyranny of the majority and an elected dictatorship, which, I argue, is what we have already. My noble friend and I will vote for all these amendments, as unlawful decisions must not be allowed to stand unchallenged.
Lord Judge (CB)
My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.
The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.
My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.
As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.
Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.
Lord Sandhurst (Con)
My Lords, I oppose these amendments. The power to make a prospective quashing order brings clear benefits. Such an order has more teeth than a mere declaration that a Secretary of State has acted unlawfully. It would be able to indicate that regulations will be quashed within a certain time from the date of judgment unless the Secretary of State in the meantime has properly performed his statutory duties and considered in the light of that exercise whether the regulations need to be revised and, if so, in what form. It is hard to see why that is not beneficial.
Further, the ability to make such orders will be especially useful in high-profile constitutional cases where it would be desirable for the court explicitly to acknowledge the supremacy of Parliament, and in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. I note that in his powerful piece in the Times last week, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, wrote that he strongly supported giving the court these powers. As he explained, these powers are not quite so radical as some suggest and, as we have heard, judicial review has always been a discretionary remedy.
The noble and learned Lord pointed out that
“high-profile cases well illustrate how discretion may properly be exercised against giving relief that would have disproportionate consequences for past events”.
He pointed to two examples:
“In Hurley and Moore … in 2012 the Divisional Court declined to quash the ministerial order permitting universities to increase student fees to £9,000. Quashing, the court said, ‘would cause administrative chaos’”.
He also explained that as long ago as 2005 in the House of Lords, in the case of Re Spectrum, seven of the court
“recognised that prospective overruling of erroneous decisions could be necessary”—
I stress that word—
“in the interests of justice where the decision would otherwise be ‘gravely unfair and (have) disruptive consequences for past transactions or happenings’. Although it was not exercised in that case, the power was recognised by five”
members of the court. It will ensure sensible, good administration. It will not bring injustice. These are real benefits.
As for the presumption, I have listened carefully and with the greatest respect to the noble and learned Lord, Lord Judge, but on this occasion I must differ from him. It is only a presumption; it means merely that the court must start from there. It is, as my noble friend Lord Faulks explained, a flag; it points it out; it reminds the court. It does not impose a destination. If there is good reason not to make such an order, the court will be obliged to follow its conscience and depart from the principle—but, if there is not good reason, why should there be a problem? In short, the court is simply prompted to do what good reason dictates.
This clause does not damage the rule of law. It is reasonable and just.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.
There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.
Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.
I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.
So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.
This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.
I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.
The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power
“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]
really captures what the clause is intended to achieve.
Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.
The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.
Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.
The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.
First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,
“unless it sees good reason not to do so”;
the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.
The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.
The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.
I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, before I seek to test the opinion of the House—which I propose to do—I will make two short points. I do not accept that there is no distinction between a suspended quashing order—which we accept is sensible in the interests of what the Minister referred to as remedial flexibility—and a prospective-only quashing order. The remedial flexibility in a suspended quashing order addresses entirely the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his article in the Times, and also addresses the point made in the Ahmed case, as explained by the noble and learned Lord, Lord Hope of Craighead, in Committee.
The objection, in answer to the noble Lord, Lord Faulks, to the prospective-only quashing order is not only that his independent review recommended suspended quashing orders, but it did not recommend prospective-only quashing orders. The important objections to prospective-only quashing orders are, first, not that they give the judges too much power, but that the power they give is to validate unlawful action before the date on which the quashing order is made—action that is ex hypothesi unlawful because that is what the court determines. Secondly, they would deprive litigants of a remedy if they have already suffered from the unlawfulness before the date of the quashing order.
The Minister said, incomprehensibly, that he stood by the answer that a quashing order would be made in the tax case. We say that the tax case illustrates the very danger of the court having the power to quash prospectively only. For those reasons, I respectfully seek the opinion of the House.
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Lord Etherton
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or prospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.
Lord Etherton
“Limitation of review of Upper Tribunal’s permission-to-appeal decisions
(1) In the Tribunals, Courts and Enforcement Act 2007, after section 11 insert—“11A Finality of decisions in exercise of the supervisory jurisdiction(1) Subsection (2) applies in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).(2) Subject to subsections (3) and (4), a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.(3) An appeal lies to the Supreme Court from any such decision of the court of supervisory jurisdiction but only with the leave of the court of supervisory jurisdiction or of the Supreme Court; and such leave may not be granted unless it is certified by the court of supervisory jurisdiction that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court.(4) An application to the court of supervisory jurisdiction for leave to appeal to the Supreme Court must be made within the period of 7 days beginning with the date of the decision of the court of supervisory jurisdiction and an application to the Supreme Court for such leave must be made within the period of 7 days beginning with the date on which the application is refused by the court of supervisory jurisdiction.(5) In this section—“decision” includes any purported decision;“supervisory jurisdiction” means the supervisory jurisdiction of—(a) the High Court in England and Wales or Northern Ireland, or(b) the Court of Session in Scotland,and “the court of supervisory jurisdiction” is to be read accordingly.”(2) The amendment made by subsection (1) does not apply in relation to a decision (including any purported decision) of the Upper Tribunal made before the day on which this section comes into force.”Member’s explanatory statement
These amendments retain the Cart supervisory jurisdiction but, subject only to a limited right to apply for permission to appeal to the Supreme Court, bar any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise.
Lord Etherton (CB)
This amendment is supported by the Law Society, the Bingham Centre for the Rule of Law and the Public Law Project.
Amendment 5 is intended to strike a middle course between, on the one hand, the abolition of the Cart supervisory jurisdiction of the High Court in England and Wales, and the Court of Session in Scotland, subject only to the three exceptions specified in proposed Section 11A(4) of the 2011 Act, and, on the other hand, the full retention of the existing Cart supervisory jurisdiction. My amendment would maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from a refusal of permission to appeal or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court, such as interim relief. The one exception is that following a debate in Committee, and at the suggestion of the noble Lord, Lord Pannick, the amendment now provides for an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal. My amendment provides for a very short timetable of seven days for an application for leave to appeal.
My amendment would curtail the amount of judicial time currently spent on hopeless Cart cases. In one important respect, it would impose a more restrictive regime than that in Clause 2, as it does not make any exceptions as are to be found in subsection (4). Those exceptions give rise to concern, as it can be predicted, particularly in immigration and asylum claims where the objective is often to string out matters for as long as possible, that many applicants will claim to fall within one or more of the three exceptions, even if hopeless, and the High Court would have to adjudicate such claims, and with a right to apply to the Court of Appeal for permission to appeal.
Critically, retaining the restricted supervisory jurisdiction, as proposed in Amendment 5, would help to avoid injustice. The Ministry of Justice’s best estimate, based on the nine years from 2012 to 2020, is that the Cart jurisdiction has been successfully invoked in between 40 to 50 cases on average each year, and on being remitted to the Upper Tribunal for reconsideration of permission to appeal, the overwhelming majority are then given permission to appeal.
Lord Faulks (Non-Afl)
My Lords, the IRAL came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court. It made the recommendation in relation to Cart and the case of Ahmed only, despite a number of other cases which were drawn to the panel’s attention as being possibly wrongly decided. As I pointed out in Committee, this was also the view of Lord Carnwath, who had specialist knowledge of the genesis of the Upper Tribunal. I believe it is the view of many, though of course not all, judges.
There are, as we have heard from the noble and learned Lord, a cohort of judges who have to consider what are almost always hopeless applications. They consider them very conscientiously. There may be an argument as to how much time precisely is spent and at what cost, but with very great respect, I am not sure that that is the point. The applicants have, in effect, already had three bites of the cherry. In the extremely unlikely event that a specialist tribunal has made an egregious error of law, I am sure the House will be aware of the fact that the qualified ouster clause contained in Clause 2 provides that, if there is a bad faith decision by the Upper Tribunal or one that is procedurally defective in a way as to amount to a fundamental breach of the principles of natural justice, there will still be an opportunity to challenge it. For the most part, there will not be.
Of course, I have enormous respect for the noble and learned Lord, Lord Etherton, and other noble Lords who support this amendment, but I respectfully submit that we need to grasp the nettle. The poor prospects of success have not deterred applicants from making Cart judicial review applications in the past. I accept that this amendment would further reduce the avenues of challenge, but it would not, I suspect, put anybody off. I am sorry to say that this amendment seems to be something of a fudge. It will frustrate the purpose of the Bill. I fear that, if passed, a Cart JR application will continue to be the most popular JR application. The IRAL found that, of all the possible avenues of judicial review, this is the most popular and that statistic has not been challenged. Perhaps that is not surprising. If you are seeking asylum, it is not surprising that you would seek out every avenue in the hope that you would somehow be successful the next time.
On Amendment 6 from the Labour Front Bench, the potential review which this amendment envisages seems almost impossible to provide—although, no doubt, hard-working civil servants diverted from many other tasks would do their best if this amendment were to become part of the Bill. An asylum application will of course usually involve arguments that include references to Articles 3 and 8 and possibly even the Equality Act. By definition, these arguments have been rejected at all stages of the process. What precisely is this report supposed to do? Is it supposed to conduct a quasi-appeal of all those decisions? How will the material be obtained to enable the report to be provided? With great respect, the House really needs to know how this work will help, before committing the Government to an expensive and possibly fruitless exercise.
Lord Marks of Henley-on-Thames (LD)
My Lords, I support the amendment in the name of the noble and learned Lord, Lord Etherton, to which the noble Lords, Lord Pannick and Lord Ponsonby of Shulbrede, and I have added our names. I suggest that the amendment is a sensible compromise between abolishing Cart JRs altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.
We see and acknowledge the risk posed by large numbers of unmeritorious challenges to decisions of the Upper Tribunal dismissing appeals from the First-tier Tribunal, but believe that risk has been exaggerated by the Government, in terms of both the time and judicial resources expended on Cart JRs, as the noble and learned Lord, Lord Etherton, has explained, and the low success rates, which are contended and relied upon by the Government. In particular, we doubt that the Government’s figures take into account the full overall impact of successful JRs on the judicial review climate as a whole, particularly in the area of immigration, to which Cart JRs generally apply.
The Minister is not alone in overestimating the time and judicial resource that would be saved by the abolition of Cart reviews. I say now what I should have said during the debate on the last group: I am very grateful to the Minister for the time he spent discussing with us the issues arising in this Bill, including on Cart reviews. However, in spite of those discussions, we agree with the noble and learned Lord, Lord Etherton, that any savings achieved by the abolition of Cart JRs are not worth tolerating the injustice that would be caused by their abolition. Every successful Cart application signals an injustice that would be done to a future applicant were this clause to be enacted.
As many of us said in Committee, this clause, unamended, would set an ugly precedent for ouster clauses in future legislation, building on the general purpose template in this clause, which is designed to insulate unlawful executive action from judicial review. I suggest that the amendment moved by the noble and learned Lord, Lord Etherton, elegantly avoids that pitfall and it is very important that we support it for that reason, as well as others.
The bar to launching a Cart review is and will remain high: the applicant for judicial review always has to surmount a difficult hurdle in securing permission to bring an application. That is as it should be, given the nature of the supervisory jurisdiction. Indeed, the conditions set out in the Cart case itself were restrictive and stringent, and they will not change. The provision outlined by the noble and learned Lord, whose amendment would allow for an appeal from a decision of the supervisory court directly to the Supreme Court only, in the most limited circumstances only and subject to very short time limits, is a sensible safeguard—and no more—to ensure that important points of law can be considered by the Supreme Court in appropriate cases. I suggest that the Government should not be concerned about that.
Amendment 6, to be spoken to by the noble Lord, Lord Ponsonby, seeks a review of the operation of the provisions in Clause 2, with particular reference to the consequences for persons with protected characteristics under the Equality Act 2010 and the enforcement of rights under the Human Rights Act 1998. We support it in principle, but of course we await hearing from both the noble Lord, Lord Ponsonby, and the Minister on this.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.
There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.
The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.
My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.
Lord Wolfson of Tredegar (Con)
My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.
The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.
In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.
I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.
Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.
While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.
Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.
With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.
I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.
Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.
The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.
Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.
Lord Etherton (CB)
I should like to make three essential points by way of reply to what has been said. I am extremely grateful to those Members of the House who have supported my amendment.
The noble Lord, Lord Faulks, highlighted what is for him, and I think in government policy terms, critical: that it is said that the success rate is too low. This raises the question: at what price do we value justice? We are agreed that 40 to 50 cases each year have been wrongly refused permission to appeal by the Upper Tribunal. In the case of severely important asylum claims and human rights cases, those 50 cases represent all the trauma that is gone through by a complainant. If one has sat in court and listened to the stories of people who have made the most extraordinary efforts to get to this country, seeking asylum, going from place to place trying to get here, one will know that refusal of a Cart review as one of the 50 is a real denial of justice.
Yes, there are very many cases—too many cases; we are all agreed on this—of unmeritorious applications by way of Cart, but we have to find a balance which takes into account the injustice that will be suffered by even one person, let alone 50 people, in these most serious of cases which involve such a long time and, in many cases, severe trauma.
There are those who, like Micah, recall the admonition: “Justice, justice you shall pursue”. That is what I have spent my entire career attempting to do, particularly as a judge. I do not accept that the middle course is paying too high a price for the justice that would otherwise be denied to the categories of people for whom I have been speaking. My presentation—my middle course—is for those people who would otherwise suffer.
My last point is this. Attractively though the Minister has put it, that there are three bites of the cherry is not entirely correct. The modern method of appeal from tribunals is an appeal from a decision in an asylum case from the Lower Tribunal, then to the Upper Tribunal and then to the Court of Appeal. On his analysis, the Court of Appeal hearing would be a third bite of the cherry, but that is standard procedure. I do not accept that a third review of tribunal cases is in any way unusual. I wish to test the opinion of the House.
(b) it is not a recordable offence, as specified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).”Member’s explanatory statement
This amendment seeks to exclude any offences which are recordable from the automatic online conviction option.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this whole group of amendments is about criminal procedure divisions. It is not my intention to press any of these amendments to a vote, but to look at the broad sweep—if I can put it like that—of the way the various elements of the emergency legislation for Covid, for example, and other things are being put into criminal procedures on a more permanent basis. I remind the House that I sit as a magistrate and I have personally sat in the Covid emergency-related courts over the last two years.
I will go through these amendments relatively quickly, even though they are important amendments. Amendment 7 seeks to exclude any offences that are recordable from the automatic online conviction option. The existence of a criminal record can, for example, seriously undermine someone’s chances of finding employment, especially in certain sectors and professions, including nursing, social care, childminding and teaching; of accessing educational and training opportunities; of obtaining certain types of insurance; or of having the ability to travel to certain countries. For non-UK citizens, criminal records can affect their right to remain in the country. If the automatic online procedure is introduced, it is crucial that it applies only to those offences for which convictions are unlikely to have an impact on individuals’ rights and opportunities. It is in that spirit that I tabled Amendment 7.
Amendments 8 and 13 are also probing amendments, of which I gave notice to the Minister yesterday, to question to what extent courts will be required to share information with the media and public about cases that have an online or written element. Concerns have been raised that the Bill could damage the principle of open justice and access to the courts’ information. As the Minister knows, this was raised with me only yesterday by the Guardian Media Group; I received a briefing on this matter, which I forwarded to him. I will not go through all the points that are raised in the briefing, but there is a concern that, if the Bill becomes law, it will mean an end to many first appearances in the criminal courts, with the consequential significant reduction in information provided to the media. Various examples are given in the briefing. Although the Minister pointed out in Committee that HMCTS has guidance on this matter, the reality is that there is nothing in the Bill that requires the steps in the guidance to be taken. The purpose of these amendments is to encourage the Minister to give a fuller explanation of the way the media will get access to the courts.
I move on to Amendment 9, under which the accused must have obtained the age of 18 when charged to enter a guilty plea in writing under Clause 4. Children are inherently vulnerable in nature and possess a well-evidenced propensity to plead guilty, notwithstanding the evidence or potential defences—that is in the briefing that I have from Justice. I have to say, talking as a youth magistrate, I think that children also plead not guilty when they are not properly advised. Lawyers need to spend time with youths to get them to explore the impact of whatever their plea is going to be. I have seen ill-considered pleas, if I can put it like that, so I think it is very important that they are properly advised before they make a plea in court. As the chair of the Justice Committee, Sir Robert Neill, pointed out at Second Reading in the House of Commons:
“What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future.”—[Official Report, Commons, 26/10/2021; col. 206.]
Amendment 10 proposes:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
As I said, this is a probing amendment to give the Minister an opportunity to commence a review of the procedure to see whether he is satisfied that it is bedding in properly and functioning in an appropriate way. Amendment 11 would guarantee that defendants have access to legal advice before submitting a plea under the provisions of Clause 6. Amendment 12 would ensure that an accused person is informed not only about the consequences of giving or failing to give a written indication of plea but the potential legal and practical consequences of pleading guilty.
Various pressure groups, if I can call them that, have expressed concern about the written procedure of indicating a plea of guilt without proper advice. The Law Society contends that unrepresented defendants will not have the necessary legal knowledge to know whether they are in fact and in law guilty of an offence. Without legal advice, a defendant will likely not understand the full implications of their decision to indicate a plea and the possible consequences of entering a guilty plea. A seemingly innocuous decision made in writing or online could have significant consequences for the defendant.
I know that the Minister’s response to that point will be to say, “They do it in regular courts, so what is the difference here?” But the answer to that point is the ease of doing something by accident. When you physically go to a court, even if you are unrepresented, the environment is such that you know that you are involved in a serious matter, and there is also an opportunity for interaction with judges or magistrates. Certainly, in my experience, they will explore the plea, whether guilty or not guilty, to see whether people understand what they are saying when they respond to the question. The concern is that when this procedure is online there is a temptation to press that button without being aware of the consequences, and that concern is addressed by Amendments 11 and 12.
Amendment 14 would delete Clause 8, thus removing the written procedure for children for indicating plea and determining the mode of trial. Clause 8 would allow children to use the new allocation procedure. That is despite the fact that existing law rightly affords children additional productions and safeguards to reflect their inherently vulnerable nature and well-evidenced propensity to plead guilty—although I question that last point, even though I am reading out that briefing. The point is the same one: people need to be properly advised and understand the gravity of the situation. When dealing with allocation, it is an opportunity for everyone, and children in particular, to fully understand the situation that they are in.
Amendment 15 would delete Clause 9(5), which will introduce a power for the court to proceed with allocation proceedings in the absence of a child defendant. This is a similar point to the one I have just made. We are not convinced that the supposed merits of having a child absent when this decision is made outweigh the risks of disadvantage and lack of safeguards. This is repeating the point I made on the earlier amendments that, certainly in my experience, when a court is deciding on allocation, it sometimes goes into some level of detail on the case itself and it is absolutely right that the young person—and the parents, I might say—should be present when that is being heard. One thing I absolutely always do when I am in youth court is make sure that the parents understand what is being said against the youths, because the youths do not necessarily tell the parents why they are there in the first place. So I think it is an important piece of procedure.
Amendment 17
“would ensure that the new increased magistrates’ sentencing powers would be subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.”
The noble Lord, Lord Wolfson, argued that the Government already publish data, but I will read out the data that is published. The Government currently collect the following data: first, quarterly data on custodial sentences and average sentence length in criminal courts; secondly, cross criminal justice system scorecards; and, thirdly, criminal justice outcomes data. So, those data which are currently collected will not measure the impact of the increased sentencing powers for magistrates; there needs to be a more specific approach to properly capture those increased sentencing powers, and that is the purpose of this amendment.
Amendment 18 would delete Clause 14, alongside the deletion of Clause 8. I have spoken to this already; it is consequential on the earlier amendment.
Finally, Amendment 37 would provide that, before local justice areas are abolished, the Lord Chancellor must: undertake a consultation with relevant stakeholders; lay before Parliament the report and findings of such consultation; and provide a response explaining whether and how such issues which have been identified would be mitigated. I will say a little more about this amendment. I had thought this was a relatively innocuous amendment. Noble Lords may be aware that magistrates are arranged in local justice areas. My local justice area, for example, is central London, where there are about 300 magistrates. We have a bench chairman, elected by us, and she has a pastoral role and an administrative role in managing all the magistrates within that local justice area.
I understand that this is going to be reviewed, but the argument for doing away with this structure and moving to structure that is more similar to other tribunals is that it would make the process more flexible. But the point I made in Committee, which I repeat now, is that my experience as a current panel chairman of the Greater London family panel—I have about 300 family magistrates who I am currently responsible for—is that every single day I am dealing with pastoral matters. I think it is an important role and I very much hope it will be retained in whatever future structure is landed on, but I understand there will be consultation. I beg to move.
Lord Thomas of Cwmgiedd (CB)
I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.
I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.
The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.
That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.
What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.
I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.
Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.
The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.
In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.
Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.
Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.
Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.
Lord Ponsonby of Shulbrede (Lab)
Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?
Lord Wolfson of Tredegar (Con)
I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.
Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.
Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.
Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.
The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.
Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.
Lord Thomas of Cwmgiedd (CB)
My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.
Lord Wolfson of Tredegar (Con)
My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.
Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.
I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.
I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.
There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.
I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I beg leave to withdraw Amendment 7.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.
Lord Wolfson of Tredegar (Con)
My Lords, I am sorry but one of the problems of doing this online is that, when the system freezes, you do not have any notes.
Lord Wolfson of Tredegar (Con)
Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.
The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.
Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.
Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.
Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.
The Lord Bishop of St Albans
My Lords, I rise to speak briefly to Amendment 28 standing in my name. I would be grateful if the House would indulge me just for a few minutes. As I explained last week when I was presenting my Private Member’s Bill, Public Health England pointed out that, in just one year, there were 409 suicides related to problem gambling. Your Lordships will be aware that the largest lobby group here in the House is Peers for Gambling Reform. Whenever we have tried to deal with this, one thing we keep hearing back is that we simply do not have the statistics or the data on the various causes of suicide. For some while, I have been trying in every way I can to get at least some data to help us with this so that we can devise strategies to reduce the terrible burden on families who have lost a young person.
The noble Lord, Lord Ponsonby, is right that most of those who have taken their lives are young men, but it is now becoming clear that this is quite a significant problem also among younger women. It is partly because the ubiquitous gambling adverts are now spreading into women’s magazines and so on—it is just all over the place.
I shall be brief, because the Minister addressed some of the concerns in responding to my Private Member’s Bill, the Coroners (Determination of Suicide) Bill, last Friday, but there are some important differences in this amendment, which is my attempt to respond to points that the Minister made. Unlike my Bill, the amendment would permit, but not require, coroners to record factors relevant in a death by suicide. Other differences between the amendment and the original Bill include provisions to ensure that the jury would no longer have any say in the consideration and recording of relevant factors and that the consideration and recording of factors by the coroner would now occur outside the inquest process and not disrupt the traditional remit of an inquest to determine how, what, when and where in relation to an unexplained death.
Finally, the amendment would require the Secretary of State to issue guidance on which factors relevant in a death by suicide could be considered and the form in which they would be recorded by a coroner. Strict data protection provisions are included to prevent the identity of the deceased being disclosed or deduced in any way.
Lord Thomas of Gresford (LD)
My Lords, I want to say how much I support the right reverend Prelate the Bishop of Albans in his campaign against gambling. He is energetic in that cause, and I very much respect him for it. He comes up against the nature of inquests, hallowed over many years, which are restricted to inquiring who, where and when. They do not even include the question that is emblazoned upon my family crest: ar bwy mae’r bai—“Who can we blame?”
When we leave this building, we should look at Westminster Abbey and realise that it was not built at the time that the procedures of inquests were begun. The coroner remains in charge of his inquest. He may discontinue, he may decide the inquest on the papers, or he may utilise audio or visual means to do so—all he has to do is notify interested parties that the coroner is satisfied; those are the statutory words. He does not have to give reasons. In particular, he does not have to have the consent of the family members—those who are bereaved and for whom an inquest is a most important matter in their lives. I support the amendments in the name of the noble Baroness, Lady Chapman, which, very sensibly, require the consent of interested persons to the coroner making his decisions in the areas that I referred to, and require him to give reasons for those decisions. I leave it to others to expand.
Lord Wolfson of Tredegar (Con)
My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.
As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.
For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.
Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.
Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.
Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.
Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.
All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.
Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.
I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.
The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.
For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.
I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.
As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.
I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.
I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.
Lord Wolfson of Tredegar
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased, and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.
This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.
The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.
Lord Thomas of Gresford (LD)
My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.
Lord Thomas of Cwmgiedd (CB)
My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.
Baroness Jones of Moulsecoomb (GP)
I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.
I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.
I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.
Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.
We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.
I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.
Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.
For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.
He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.
The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.
Lord Wolfson of Tredegar
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.
There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.
In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.
There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.
Lord Etherton (CB)
My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.
Lord Marks of Henley-on-Thames (LD)
My Lords, we very much welcome this amendment and thank the Minister very much for responding so positively to the suggestion. There was never any justification for a distinction between tribunals and courts in this regard. Also, the House has every reason to be very grateful to the noble and learned Lord, Lord Etherton, for pushing the point and bringing it to such a successful conclusion.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.
Lord Hacking (Lab)
My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?
Lord Wolfson of Tredegar
My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.
More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.
Amendment 29 agreed.
Clause 49: Extent
Amendments 30 and 31
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.
“(3A) Section (Payments in respect of pro bono representation)(3) extends to England and Wales and Northern Ireland. (3B) Section (Payments in respect of pro bono representation)(2) and (4) extends to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for the provisions inserted by the new clause after Clause 47 in the name of Lord Wolfson of Tredegar to extend to Scotland or Northern Ireland as necessary.
Lord Wolfson of Tredegar
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.
“(a) section 13(3);”Member’s explanatory statement
This amendment results in clause 13 and its associated amendments, except for subsection (3) of the clause, coming into force by regulations rather than on Royal Assent (subject to the amendment in the name of Lord Wolfson of Tredegar at page 59, line 10).
“(ba) paragraphs 12 to 14 of Schedule 2, and section 18 so far as relating to those paragraphs;”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 59, line 3, and provides for amendments related to Clause 11 to come into force on Royal Assent.
“(1A) If paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 (as it was enacted) has been brought in force in relation to either-way offences before the passing of this Act, the following provisions come into force on the day after the day on which this Act is passed—(a) section 13 (except subsection (3));(b) paragraphs 16 to 20 of Schedule 2, and section 18 so far as relating to those paragraphs.”Member’s explanatory statement
This amendment brings Clause 13 and its associated amendments into force the day after Royal Assent if the provisions to which it relates are in force by then.
“(d) section (Payments in respect of pro bono representation).”Member’s explanatory statement
This amendment provides for the new Clause after Clause 47 in the name of Lord Wolfson of Tredegar to come into force two months after Royal Assent.
Lord Wolfson of Tredegar
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.
Lord Wolfson of Tredegar
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, I am aware that we are without the Minister, so shall we have a brief pause while he is rustled up? That will allow some people to escape the Room and, hopefully, we can track down the Minister. We are all just too efficient—that is why it has happened.
Viscount Younger of Leckie (Con)
My Lords, in the absence of the Minister, who is not too far away, I suggest that the House do now adjourn until 5.10 pm.
Judicial Review and Courts Bill
Wednesday 6th April 2022
(2 years, 7 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 146(a) Amendment for Third Reading - (4 Apr 2022)
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment adjusts terminology relating to devolution in Northern Ireland.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, there is one minor and technical amendment in my name to Clause 49, which inserts a new clause to allow pro bono cost orders in tribunals. Specifically, the amendment is to the wording of the devolution carve-out, which ensures the clause applies only to tribunal proceedings that are reserved in Scotland and Northern Ireland. I have made this amendment following discussions between the Office of the Parliamentary Counsel and its equivalent in Northern Ireland, as the Northern Ireland equivalent felt the new words more accurately reflected the wording of its devolution settlement. However, the amendment has no impact on either the policy of the clause or how the clause will work in practice. I beg to move the amendment in my name.
Lord Foulkes of Cumnock (Lab Co-op)
I wonder why this was not picked up earlier. Does it reflect within Whitehall a lack of understanding of devolution and its impact yet again?
Lord Wolfson of Tredegar (Con)
My Lords, no; it reflects the extremely high standards of parliamentary counsel. If we had not picked this up, nobody else would have done, but we felt it was the right thing to do.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will speak very briefly on this issue. I want to say two things. The first is to express our gratitude to the Minister and the Bill team. The Minister has given all of us a great deal of time, both before Committee and on Report, and that has been used very successfully. I would also like to express my thanks to Opposition and Cross-Bench Peers, particularly those with legal and judicial experience, who have done a great deal of work in improving this Bill. The Bill team also has given us all a great deal of help.
The second point I want to make is that we have made a number of changes to this Bill after really serious consideration in Committee, on Report and following Second Reading. It would be nice to think that, when this Bill now goes back to the Commons, those changes will get some serious consideration, rather than simply being returned to this House after cursory consideration. They are important. We have deployed a great deal of expertise, knowledge and effort in making those changes, and they deserve a proper look from the other place. That said, I give my grateful thanks to everyone.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I echo the thanks of the noble Lord, Lord Marks. I also thank the Minister and his team for their support and the numerous meetings we have had as the Bill has progressed. I would also like to thank the outside organisations that I have found particularly helpful; I mention the Public Law Project, Justice, Inquest, Fair Trials, Transform Justice, Liberty and Amnesty International—I found their support extremely helpful. I would also like to personally thank Catherine Johnson, who has been of great assistance to me as this Bill has passed through this House.
I reinforce the point made by the noble Lord, Lord Marks, about the importance of the amendments we have passed. We have had a different approach from that taken in some other Bills. We have had only a small handful of amendments that have passed for the House of Commons to consider. They have been Cross Bench-led by extremely senior judges and they deserve serious consideration by the other House.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that the House has a lot of business before it today, but I will take just a few moments to say a few words to mark the end of the passage of the Bill through this House. Over the last few months, we have had some spirited discussions on our Courts & Tribunals Service and the relationship between the judiciary and Parliament. I am grateful to all noble Lords for their scrutiny of this Bill.
Of course, I was disappointed that the House voted, albeit narrowly, to remove the power for prospective-only quashing orders on Report. I will reflect further on the House’s decision on Report to remove the presumption in favour of using the new remedies from Clause 1. We had detailed debates over the merits or otherwise of the presumption. I can assure the House that I have heard and listened carefully to the arguments made to me both inside and outside the Chamber.
Judicial Review and Courts Bill
Tuesday 26th April 2022
(2 years, 7 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 26 April 2022 - (26 Apr 2022)
14:30 - The House divided: - Ayes: 297 / Noes: 56 - Question accordingly agreed to.
14:46 - The House divided: - Ayes: 297 / Noes: 61 - Question accordingly agreed to.
14:58 - The House divided: - Ayes: 299 / Noes: 168 - Question accordingly agreed to.
Madam Deputy Speaker (Dame Rosie Winterton)
I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendment 11. If it is agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal. Before I call the Minister, I ask hon. Members to indicate whether they want to contribute to the debate, because not many have put in.
Clause 1
Quashing orders
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
I beg to move, That this House disagrees with Lords amendment 1.
Madam Deputy Speaker
With this it will be convenient to discuss the following:
Lords amendment 2, and Government motion to disagree.
Lords amendment 3, and Government motion to disagree.
Lords amendment 5, Government motion to disagree, and Government amendment (a) to the words so restored to the Bill.
Lords amendment 11, and Government motion to disagree.
Lords amendments 4, 6 to 10 and 12 to 22.
James Cartlidge
I begin by discussing some of the key changes made to the Bill in the other place as a result of amendments brought forward by the Government and I will then turn to the other Lords amendments. Since we last debated the Bill, further measures have been added by the Government with unanimous support from the other place.
First, Lords amendment 7 seeks to give greater flexibility to the online procedure rule committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. It will enable parties who tried to resolve their dispute online prior to commencing legal proceedings, but who do not resolve some or all of their dispute, to then transfer into the legal process seamlessly.
Secondly, Lords amendment 10 will allow coroners to provide registrars with additional information to help to ensure that deaths do not go unregistered. It will address an anomaly whereby, in a small number of cases, families do not register a death when coroners authorise the disposal of a body before any formal death registration has been completed.
Finally, Lords amendment 12 will allow pro bono cost orders to be made in tribunals in much the same way as they are already available in the civil and family courts. It captures the majority of tribunals in which cost orders might be made, but it also creates a power for the Lord Chancellor to bring additional tribunals within the scope of the power through secondary legislation. I urge hon. Members to support those amendments.
A series of minor and technical amendments were also made to the Bill by the Government. I do not intend to go through them in detail, but if any hon. Member has a question about them, I will endeavour to address it in my response to the debate. [Interruption.] I shall expect a flood!
I now turn to the amendments that the Government did not bring forward in the other place. Lords amendment 4 removed the presumption, which provided that a court would have to use the new quashing order powers if they offered adequate redress and there was no good reason not to do so. Lords amendments 1 to 3 remove prospective quashing orders from the Bill.
The courts have several duties with regards to judicial review. They have a duty to individuals who may have been adversely affected by a decision or action, a duty to Parliament to review whether a decision was taken in accordance with the process and procedures set down by the law, and a duty to respect their own limitations and not review the merit of a policy decision or artificially constrain a decision maker’s discretion. They also have wider duties to justice, fairness and the public interest. On many occasions, these duties align and the best outcome for a case is clear, but on other occasions these duties can conflict with the result that the nuance of the circumstances can be lost in the bluntness of the remedy.
The new powers brought forward in this Bill, as introduced, would allow the courts to respond flexibly. As such, I was disappointed that the other place voted, albeit narrowly, to remove the power for quashing orders to be made with limited or no retrospective effect, and I do not need to speak hypothetically. In Canada, another common law country, prospective remedies have been used for some decades to good effect. They have been used, for example, to help vulnerable people maintain important workplace protections that would have ceased to exist had a quashing order applied retrospectively.
Turning to the presumption, I can be brief. The Government do not accept the argument that the presumption fetters discretion or is in some way dangerous. Its purpose is to precipitate the rapid accumulation of jurisprudence on the use of these new powers. In furthering that purpose, however, we have heard persuasive arguments that it is in fact unnecessary. I am reassured, particularly by the learned former members of the judiciary who contributed to the debates in the other place, that judges will use these powers and consider their use regularly without the need for the presumption. Consistency and predictability for their use are further fostered by the list of factors in clause 1(8). I can therefore confirm that the Government will not be bringing back the presumption.
Lords amendment 5 replaced the ouster clause used to remove so-called Cart judicial reviews with a measure that would only prevent such challenges reaching the Court of Appeal, preserving the route of challenge from the upper tribunal to the High Court. I am very grateful to the other place for bringing forward this suggestion, and while I appreciate the sentiment behind such a compromise position, the Government cannot accept this as a meaningful solution to the problems we have set out. While it would tackle some of the resource question, it does nothing to reduce the burden on the High Court or upper tribunal—approximately 180 judge sitting days per year—which is where the burden mainly falls. It also does not tackle the current anomaly of a further challenge to a permission to appeal decision after that application has been rejected by both a lower and a senior court—what has come to be called in this debate, “three bites at the cherry”. The Government propose to bring back the original ouster clause, along with a technical amendment on the Northern Ireland carve-out, to ensure its terminology is consistent with other provisions.
Finally, Lords amendment 11 seeks to provide legal aid for representation for bereaved people at all inquests where public bodies—for example, the police or an NHS trust—are legally represented. While the Government are sympathetic to the intentions of those in the other place, I am afraid I do have concerns about this amendment. As drafted, this amendment would make access to legal aid in these circumstances automatic, removing the means and merits tests, and leading to significant and open-ended costs to the taxpayer. This would go against the principle of targeting legal aid at those who need it most by allowing funding for those who could comfortably afford the cost themselves.
I am very grateful to the hon. Members for Hammersmith (Andy Slaughter) and for Stockton North (Alex Cunningham) for meeting me several times to discuss this issue, including with colleagues in the other place. I have assured them that the Government are continuing to make changes to help ensure that bereaved families are truly placed at the heart of the inquest process. Aside from our recent removal of the means test for successful applications for representation through the exceptional case funding scheme, we are also proposing to remove the means test for legal help in relation to any inquests where there is a potential human rights breach or significant wider public interest as part of the means test review that is currently out for consultation. These changes will genuinely help them navigate the inquest process, where appropriate, and I urge hon. Members to await the outcome of this consultation before pursuing further legislation on this issue.
I am grateful to the Members of this House for all their scrutiny of the Bill so far, and I hope today we can accept the changes proposed by the Government on the amendment paper. Even if there remain some small disagreements between us, I am sure all hon. Members here today would like to see this Bill reach Royal Assent, particularly as it contains a number of important court recovery measures. I therefore urge hon. Members to accept the compromises the Government have made, and allow the Bill to finish its passage through both Houses as quickly as possible.
Andy Slaughter (Hammersmith) (Lab)
I thank those who have worked to improve this Bill during its progress through both Houses. Without embarrassing him, I would single out my hon. Friend the Member for Stockton North (Alex Cunningham), who volunteered to lead on the courts part of this Bill—that is, most of it—before he had even finished with the Police, Crime, Sentencing and Courts Bill. I would also mention the efforts of our colleagues in the other place, particularly my noble Friends Lord Ponsonby and Baroness Chapman and senior Cross Benchers, who are a large part of the reason why we are discussing successful Lords amendments today—all credit to them.
In the spirit of consensus that has been a feature of much of our proceedings, I thank the Minister and his team for at least listening and entertaining our views, even if we did not in the end see eye to eye, and for their significant concession in removing the presumption from clause 1. Since the Bill was first introduced, I have also been lucky enough to work with many individuals and organisations with particular expertise on the issues covered. I would like to put on record my thanks to the Public Law Project, Inquest, Justice, Liberty, the Bingham Centre, the Law Society and the Bar Council, but that list is not exhaustive.
The majority of amendments before the House today—Lords amendments 6 to 10 and 12 to 22—are Government amendments that amend part 2 of the Bill. For the avoidance of doubt, we do not oppose these. We had issues with part 2 of the Bill, but these were mainly procedural and are, I hope, open to correction in the light of experience. Our objections to part 1 are more fundamental, and we are grateful to the other place for highlighting these in Lords amendments 1 to 5. I will deal with these and then come on separately to Lords amendment 11.
First, by way of a little context, we see no purpose whatsoever in clauses 1 and 2 of this Bill, and it would be our preference to remove these clauses from the Bill entirely. Our attempts to do so in Committee were not successful, but our principal objections were reflected in the Lords amendments. Lords amendments 1 to 3, in the name of the noble Lord Marks, remove prospective-only quashing orders from the Bill.
One of the ways that the Government wish to change—they say improve—judicial review is to introduce a remedy that only rights a wrong for the future, without looking to compensate the complainant or those who have come before them. This has rightly been described as having a chilling effect on meritorious applications. It was not recommended by the independent review of administrative law that was supposed to found the basis of part 1 of the Bill. It does not, as the Government somewhat disingenuously claim, add to the armoury of the administrative court; it simply seeks to restrain its powers. That fact is given away by the clunking fist of the presumption in favour of prospective orders and of suspended orders, which clause 1 also sought to introduce. In a step bordering on the disrespectful, the Minister sought to tie the hands of the court in applying its discretionary powers, so I am delighted the Government have seen the light and do not today oppose Lords amendment 4, in the name of Lord Anderson. That extracts the worst of the sting in clause 1.
Lords amendment 5, in the name of Lord Etherton, was a pragmatic attempt to make sense of the Government’s proposal to abolish Cart judicial reviews in clause 2 of the Bill. It met both the Government’s complaint that these were too profligate and the real concerns of practitioners and others that errors of law would lead to human tragedies. It would also have mitigated the concerns about unnecessary and unwelcome employment of an ouster clause. Cart judicial review, as Members here know, is engaged when the High Court reviews a decision of the upper tribunal to refuse permission to appeal a decision of the first-tier tribunal.
Clause 2 abolishes this type of judicial review altogether, yet most cases that satisfy the threshold for Cart are compelling. In many examples, as we discussed in Committee, these are asylum or human rights cases—issues of mental health, special educational needs or entitlement to basic incomes and support needs—which have serious consequences for the claimants if errors of law have been made and are sometimes matters of life and death. Lords amendment 5 narrows the ambit of Cart so that in the majority of cases there is no onward right of appeal. The only exception would be where the case raises a point of law of general public importance. In that situation, the claimant could apply to have the case considered by the Supreme Court.
The amendment represents a compromise between the Government’s desire to save the cost of Cart judicial reviews and the need to preserve an essential judicial check against serious errors of law. All that has been argued in the other place, and votes won—albeit narrowly—on amendments 1 and 5. In discussions, the Government have conceded on the presumption. We accept that that is a significant concession, and we do not intend to press any votes on the Lords amendments clauses 1 and 2 today.
Let me turn to Lords amendment 11. Eleven days ago, on 15 April, we marked the 33rd anniversary of the Hillsborough tragedy, where 97 people lost their lives at a football game. For 33 years the families of those who were lost have fought, and continue to fight, for justice. They faced cover-ups and fundamental failures of our legal system, which only prolonged their suffering. Many campaigners—prominent among them the Mayors of Greater Manchester and the Liverpool City Region, former colleagues of ours in this place—are asking for a comprehensive Hillsborough law, which we support. Lords amendment 11 addresses an important plank of the Hillsborough law, but it goes beyond that by providing equality of arms for all bereaved families at inquests and inquiries.
The amendment would require the Government to provide public funding for bereaved families where the state is represented. It is remarkable that, even with the cuts in legal aid that we have seen over the past 10 years, current rules do not provide that. This is an issue not just of access to justice, but of basic fairness. How can it be that state bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowdfunding?
Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made 25 recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. The inquiry by the all-party group on legal aid last year reached a similar view, and many voices are saying the same thing: it is time to level the playing field when state actors are represented in inquests.
The Government have acknowledged that there is more to do on this issue. They are minded to offer non-means-tested legal aid for early advice and representation where exceptional case funding is engaged. With respect, that is not enough. It would not help—to give only some examples—in the situations of families of those who suffer healthcare-related deaths in detention, self-inflicted deaths of voluntary patients in mental health settings, those under the direct care of a mental health trusts in the community, deaths in supported accommodation, or care settings where the person has been placed by a public body or local authority. It would not have helped Coco Rose Bradford, a six-year-old girl with autism who was taken to hospital in Cornwall and died unexpectedly on 31 July 2017. In January 2022, the inquest into her death concluded, finding it to be due to natural causes—something Coco’s family disputes. Coco’s mother, Rachel Bradford, told the inquest how she watched her daughter die in front of her, and how the hospital dismissed the family’s concerns, even though Coco was in glaringly obvious pain. Rachel gave evidence that Coco’s autism played a role in how she was treated by medical staff, and that the professionals wrongly viewed her as being unco-operative and non-compliant.
Members of the local community donated to contribute towards the family’s legal costs for the inquest. Coco’s mother said in a personal statement:
“Without our barrister offering to act pro bono at the inquest hearing we’re not sure what would have happened. It seems desperately unfair that we have had to crowdfund to cover our legal fees, and rely on our barrister waiving her charges, when the hospital’s legal team are paid for by our taxes.”
Cases such as those are daily injustices in our coroners courts. We can no longer ignore the voice of Bishop Jones or Rachel Bradford. I urge members of this House to retain Lords amendment 11 because it is the right thing to do. If the Bill passes without the inclusion of Lords amendment 11, we will miss another opportunity to ensure that fairness is at the heart of our legal system.
From the day this Bill was introduced, we have puzzled about why the Government were wasting time interfering with judicial processes that are designed to improve the quality of executive decisions, rather than tackling the record backlog of cases in our courts and protect the victims of crime. By supporting Lords amendment 11 the Government could make a small but significant step to improve the court system and the experience of bereaved families.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow the Front-Bench speakers in this short but important debate. I welcome the Government’s stance on presumption and their acceptance of the amendment made in the Lords. It is worth remembering that Lord Faulks, who chaired the independent review that gave rise to all these proposals, took the view that no harm was done by removing that presumption, and that thereafter the discretionary power to have a prospective-only order that can be considered by the courts if it meets the interests of justice was, as I think he put it, an extra club in the bag of the judiciary. That is the whole point of it: it extends the remedial powers available. At the end of the day the presumption was not perhaps necessary, and the Government have taken a sensible and pragmatic stance on that. The principle of having that extra flexibility in the remedy is not objectionable, and I am glad the Opposition have not opposed it.
Some of the other changes made by the Government in the Lords are welcome. The ability to make payment for pro bono representation in a number of cases is welcome, and I am glad the Government have moved in that direction. Practitioners and the judiciary alike will welcome the changes to make online procedure rules easier and swifter to deal with, so those are practical changes.
Two issues then remain, including Cart appeals and litigation. I must respectfully differ with the shadow Minister and their lordships on that, and it is perhaps worth quoting what Lord Faulks said about it in the other place—after all, he examined this issue with probably more care than anyone. His stance was that the independent review into administrative law
“came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1736.]
That was its view, having carefully considered the evidence, in adopting a cautious approach to such a change.
Cart was controversial at the time, and it remains controversial. Lord Carnwath, who has given evidence to the Justice Committee in the past, raised questions about the Cart appeal, with his specialist knowledge of the genesis of the upper tribunal. The general view of many is that, to quote a phrase used by Lord Hope in Committee, it was a “legal misstep”. There are, of course, a tiny number of successful cases, but those should be set against the very real burden that falls not on the Court of Appeal, where Lord Etherton— for whom I have great respect—served, but on the justice sitting in the Queen’s bench division. That is where the judicial pressure is, and we should look to remove something that many practitioners, and in private many members of the judiciary, regard as an unhelpful burden on them.
In immigration cases in particular, convention rights will be engaged, but they will have been engaged from the outset. By the time we get to the Cart appeal, they will have been argued and considered by the first-tier tribunal and by the upper tribunal which, as Lord Carnwath pointed out, was designed to be a superior court, and to have in effect the judicial weight and equivalence of the High Court. An anomaly arises from the Cart decision, and it is right and proportionate to remove it.
Madam Deputy Speaker (Dame Rosie Winterton)
I call the SNP spokesperson, Anne McLaughlin.
Anne McLaughlin (Glasgow North East) (SNP)
I will speak briefly about the parts that apply to Scotland, which are significant and potentially extremely damaging to people’s rights to access justice. Because Scotland is currently compelled to do as we are told as part of this Union—we do not have the normal powers of a normal independent country—even our own democratically elected Government can do nothing about that damage. If that is not an argument for voting yes in the 2023 independence referendum, I do not know what is.
It is also interesting that, on this Bill, as with the Nationality and Borders Bill and the policing Bill, it has been left to the House of Lords—the unelected House—to represent the views of the people and attempt to get rid of the most egregious parts of each horrible piece of legislation. As a big fan of democracy, that does not make me any more inclined to support an unelected Chamber, but I want to pay tribute to those Members who have worked so hard, often into the early hours of the morning, on all of the amendments to try to make an awful Bill a tiny bit more palatable.
Lords amendment 1 removes the power to include provision and quashing orders, removing or limiting their retrospective effect. Those on the Opposition Benches, and in particular those of us who were on the Bill Committee, tried hard to get the Government to understand that if quashing orders are not to be applied retrospectively, there will be a very chilling effect. Many of us talked about the landmark case of Employment Tribunal fees that Unison brought to the Supreme Court in 2017, where the Court found that Parliament was wrong to limit people’s access to justice by charging them to use the Employment Tribunal. It found in favour of the claimants, and the quashing order had immediate effect, so the fees were abolished immediately and the Government were required to refund anyone who had paid them in the past. Given that people were being charged up to £1,200, that was a great outcome that will have made a big difference to many.
However, if the Government get their way and Lords amendment 1 is not agreed to, should something similar happen in the future, anyone who had paid such fees would be unable to claim their money back. Who would put themselves through all that for no tangible outcome? There will be zero incentive to challenge the Government or other public bodies, so those public bodies and the Government will be able to proceed safe in the knowledge that they can do whatever they like. The Scottish National party therefore absolutely supports the very sensible Lords amendments 1, 2 and 3.
At last, the Government have seen sense and agreed to Lords amendment 4. There was something sinister about the Minister wanting the power to tell the judiciary how to do their jobs. Judges have a suite of remedies at their disposal, and they should decide which are the most appropriate, so I am relieved that they finally agreed to that amendment.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
I wonder whether the hon. Lady is making an argument that contradicts her previous one. On the one hand, she said that she does not want retrospective quashing orders to be available to a judge to make a decision on, and the other hand, she argued that judges should be trusted to make their own decisions. Surely judges can be trusted to make decisions on whether a retrospective quashing order is or is not appropriate in an individual case.
Anne McLaughlin
We have had this discussion so many times before. The hon. Member needs to go and look up the meaning of the word “presumption”.
Lords amendment 5 is about Cart judicial review—in Scotland, it is Eba judicial review. The amendment would insert a new clause to enable appeals of an upper tribunal decision to refuse an appeal to the High Court and then to the Supreme Court if considering a point of law or if it is in the public interest. It is a compromise, and surely the Government can accept one further minuscule compromise. After all, as we have pointed out to Government Members on numerous occasions, the Government claim that their measures were motivated by a high number of attempts versus the low rate of success, but the evidence to support their position was so flawed that the Office for Statistics Regulation decided to launch an investigation, which found that the real success rate was at least 15 times higher than the Government were telling us. I do not think that we have had an apology for that obfuscation yet, but these days Government apologies tend to have something of a hollow ring to them. Therefore, instead of apologising, why do they not just accept that their stats were flawed and accept the compromise amendment?
Worse: the Government insist on thinking that a Cart judicial review is successful only if the appellant actually wins. The truth is that a successful Cart judicial review is one where the flawed decision of the upper tribunal is appealed and reversed. That has nothing to do with the final outcome of the case. If we base the figures on that, the stats show just how vital a safeguard Cart judicial reviews are. Using accurate figures, the Public Law Project calculated that 40 people every year would be otherwise incorrectly denied their right to appeal in cases where, as we heard from the shadow Minister, the hon. Member for Hammersmith (Andy Slaughter), the stakes can be incredibly high. We are talking not about trivial cases, but sometimes life-and-death cases. The tribunal system considers access to vital benefits, and removing that layer risks leaving people with disabilities and those facing destitution and homelessness without a last line of defence.
The tribunal system also considers immigration cases, as we heard. If it is so flawless, how am I able to tell the story again of the Venezuelan man who fled to the UK after witnessing the violent murder of his friend by state actors who would most certainly have come after him, had he remained in Venezuela? The first-tier tribunal and the upper tribunal surmised that he had nothing to fear. Thankfully, he had that last line of defence, which the Government are trying to take away and the Lords are trying to save, and he was able to judicially review the decision. The upshot was that the man was allowed to appeal. He won and was saved from deportation and almost certain persecution and death.
Retaining the restricted supervisory jurisdiction, as proposed in Lords amendment 5, would help to avoid injustice. However, voting against the Lords amendment would be a clear demonstration that people such as the man I mentioned, people who are dependent on disability benefits, and people facing homelessness are irrelevant to the Government and to Conservative Members.
Lords amendment 7 is on the online procedure rule committee. We were disappointed that neither House accepted our very reasonable request to include just one representative on the committee with knowledge and experience of the Scottish legal system. When we proposed such amendments during previous stages, I said that accepting them would
“allow the Government to keep up their pretence about respect for Scotland”.—[Official Report, 25 January 2022; Vol. 707, c. 939.]
They have declined to do even that, as has the House of Lords. It is extremely disrespectful to Scotland and our distinct legal system.
The Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of their citizens and, in particular, some of their most vulnerable people. The Bill needs to be seen as part of a whole alongside the independent Human Rights Act review, which is under way, a review of the Constitutional Reform Act 2005, which is on its way, and a succession of relevant pieces of legislation that are currently before Parliament—very currently, in fact; some are being considered this week and even today—such as the Elections Bill, the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill.
Those proposals all have something else in common: they are decisions that should be taken by the countries affected. We should not have one country deciding for other, smaller nations. Why do the people of Scotland have to put up with what Liberty called
“a concerted attempt to shut down potential routes of accountability and exert the power of the executive over Parliament, the courts and the public”
when they have consistently voted for parties opposed to those things? I will tell hon. Members why: because a slim majority of people were frightened into voting against independence in 2014.
The people of Scotland will be far more afraid of all this legislation being imposed on us than any daft scare stories that the coalition of Unionist parties can come up with next time around. We will always show solidarity to people in the rest of the UK who are fighting these terrible wrongs, but next time, in 2023, I am confident that the people of Scotland will vote yes to independence and yes to making far better decisions for ourselves.
Sir Robert Buckland (South Swindon) (Con)
I rise to speak chiefly to part 1 of the Bill. It is always a pleasure to follow the hon. Member for Glasgow North East (Anne McLaughlin), and I listened with great care to her speech. She and her colleagues often accuse the Prime Minister of wanting to have his cake and eat it. I gently but firmly suggest that she is doing the same on this occasion by relying on the unelected House, which she does not believe should exist because she is a unicameralist. That would mean that her argument about relying on the second Chamber when it is convenient is a somewhat unattractive one.
Anne McLaughlin
Does the right hon. and learned Member not understand that Members who support the system of an unelected Chamber and put people into it—the Scottish National party does not—are the ones who are being hypocritical when they then criticise it? I operate within the existing system, but I am trying to change it. However, Government Members support the system and then get angry when it fails to do what they want it to.
Sir Robert Buckland
I am grateful to the hon. Lady; her comments show the value of interventions, because we can have a genuine debate about a very important issue that goes to the heart of Lords amendments. My concern about the Lords amendments to clauses 1 and 2 is that their effect would be to go further—I am sure that it was not intentional—than their lordships’ usual role of providing close scrutiny and careful amendment, where the principle of the Bill is maintained but some of the details are altered. We have seen an example of that on presumption, on which the Government have rightly conceded.
Wera Hobhouse (Bath) (LD)
I rise to speak to Lords amendments 1, 2 and 3, all tabled by Lord Marks in the other place. I appreciate that the Government have made some concessions and I thank the Minister for his meeting with me.
Amendments 1, 2 and 3 would remove from the Bill the power to make prospective-only quashing orders. They are backed by the Law Society and Justice, and I urge Members across the House to back them too. Judicial review is one of the most powerful tools that an individual has to enforce their rights. Challenging the Government through the courts when they get things wrong is one of the core principles of our parliamentary democracy.
Wera Hobhouse
No; I am conscious of time and Madam Deputy Speaker is anxious that we proceed.
The principle should not be party political but one shared across the House. It is disappointing to see the Government pushing ahead with plans to restrict judicial review by opposing the amendments. Unamended, the Bill is described by the Law Society as “chilling”; clauses 1 and 2 undermine judicial review. Prospective-only quashing orders could be hugely harmful to those seeking justice: they would not only deny redress to someone who had been harmed by a public body’s unlawful action, but actively serve as a disincentive to those seeking justice through judicial review.
Let us imagine a person who had incorrectly been deemed ineligible for carer’s allowance by the Department for Work and Pensions. That person successfully challenges the decision through judicial review. Prospective-only quashing orders would mean that the person did not receive the back payments unlawfully denied to them. Those payments could mean the difference between a person heating their house or going cold, or between eating or going hungry.
To make matters worse, extensive delays in courts mean that decisions could be put off for even longer. Prospective-only quashing orders arbitrarily discriminate between those affected by an unlawful measure before a court judgment and those affected after one. There are numerous examples. In 2017, the High Court ruled that a Home Office policy to deport EU rough sleepers was unlawful and discriminatory. The policy was scrapped. If a prospective-only quashing order had applied, then potentially only those receiving a removal notice would be protected; all those who had already faced removal or had had a removal notice issued against them would still have faced deportation. That would not have been justice.
Important as they are, the damaging effects of prospective-only quashing orders go far beyond individual cases. They damage the basic principle that underpins our democracy: that individuals must have the power to challenge the powerful when the powerful get things wrong. If the Government or public bodies are spared the risk of retrospective legal consequences, the motivation for good decision making is lower. Public bodies will take their chances, particularly in issuing welfare benefits, because the cost of getting things wrong would still be lower than getting them right in the first place. That is bad not only for those seeking redress from the courts but for all of us. It should ring alarm bells for all of us.
The Bill is just another Government programme of constitutional reform that weakens the institutions and rights that hold them to account. We saw that in the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Government’s voter ID proposals. We Liberal Democrats will continue to stand against any attempts to weaken the institutions and rights that hold the Government and the powerful to account. I urge Members across the House to do the same and vote in favour of Lords amendments 1, 2 and 3.
James Cartlidge
I am grateful to all those who have spoken about the Bill today. I have only a short time, so I will briefly canter over the points raised in this important debate. I am grateful to the hon. Member for Hammersmith (Andy Slaughter) for recognising that we have made a significant concession on the presumption; we, in turn, are grateful for having been enabled to bring important reforms to judicial review through clauses 1 and 2.
On the issue of judicial review and prospective-only quashing orders, I thought that my hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) made a good point to the hon. Member for Glasgow North East (Anne McLaughlin) in saying that we cannot have it both ways. The Bill gives new powers and flexibility to judges; we should not at the same time fetter judges and try to predict what they would do in individual cases. That is the key point. As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), Chair of the Justice Committee, said, this is about giving judges an extra club in the bag—a golf analogy; I said that it was another tool in the toolbox. Whether we use DIY or sport analogies, we all understand that there is an extra tool for the judiciary—more powers and flexibility.
On the issue of Cart JR, my hon. Friend made a really important point. The resource issue is about High Court judges, particularly in the Queen’s bench division, who after all hear some of the most serious cases around the country, not just in London.
I understand where my hon. Friend is coming from, and concerns from all hon. Members, when it comes to legal aid. I have previously expressed my strong sympathy—particularly for MPs in the north-west, who have had a long experience around Hillsborough. Of course we are looking at that and other matters.
The hon. Member for Hammersmith is aware of the measures that we have already introduced. Even if we agreed on this measure, the Opposition would surely have to accept that it simply would not be possible for such a significant measure to be introduced at such a late hour in the course of a Bill. Were we to continue to go back and forth on this, we would risk undermining the Bill—and we must not forget that it also contains very important measures on criminal procedure, not least changes in magistrates’ sentencing powers. As soon as those new powers come in, they will start to have an impact on our backlog by ensuring that cases that would otherwise be dealt with in the Crown courts can be heard in magistrates courts. I therefore think it important for the Bill to receive Royal Assent.
As I have said, I am pleased to commend the vast majority of the Lords amendments to Members, but I ask them to join me in disagreeing with Lords amendments 1, 2, 3, 5 and 11, and agreeing to the Government’s amendment (a) while disagreeing with Lords amendment 5.
Question put, That this House disagrees with Lords amendment 1.
Judicial Review and Courts Bill
Wednesday 27th April 2022
(2 years, 6 months ago)
Lords ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 151-I Marshalled list for Consideration of Commons Amendment and Reasons - (27 Apr 2022)
16:58 - Division on Motion C1 - Ayes: 219 / Noes: 229 - Motion C1 (as an amendment to Motion C) disagreed.
Lord Stewart of Dirleton
That this House do not insist on its Amendments 1, 2 and 3, to which the Commons have disagreed for their Reasons 1A, 2A and 3A.
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B and C. A number of changes were made to this Bill in the House of Commons. I will cover both those changes and the amendments tabled to the Bill today.
Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures.
Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate.
My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly.
We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said:
“The key question becomes the nature and effect of the legal change at issue in order to determine whether a prospective remedy is appropriate. The legitimacy of its use turns on the answer to this question.”
After considering various factors, it went on to say:
“They may include reasonable or in good faith reliance by governments … or the fairness of the limitation of the retroactivity of the remedy to the litigants.”
Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly:
“Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer.”
Lord Marks of Henley-on-Thames
Moved by
At end insert “and do propose Amendment 1B in lieu—
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful to the Minister for the careful and comprehensive way in which he opened this debate. Nevertheless, I regret the fact that the House of Commons rejected our Amendments 1 to 3 on prospective-only quashing orders. However, I greatly welcome the acceptance by the other place of the amendment moved by the noble Lord, Lord Anderson of Ipswich, removing the presumption that the court must generally exercise the new powers unless it sees good reason not to do so.
That presumption was by far the most offensive part of the Bill. It was rightly opposed across the House by lawyer and non-lawyer Peers alike. The noble Lord, Lord Anderson, is to be congratulated on the success of the amendment and I am grateful to the Government for accepting it. What we now have is an unfettered judicial discretion, circumscribed only by the requirement to consider the factors listed in Clause 1(8).
I have made it very clear that I oppose prospective-only quashing orders in principle. I do so first on the basis that their effect is to give retrospective validation to actions or decisions previously taken or regulations passed by government that the court finds unlawful and merit a quashing order. They breach the principle that it is for Parliament, not the courts, to change the law.
The second main reason for my opposition to such orders is that they do not protect those disadvantaged by unlawful government action taken before a quashing order takes effect. Where such an order is made, therefore, persons who are not before the court to present their cases are left with no remedy in respect of the unlawful action so they lose out against the well-funded, well-represented litigant who secured the prospective-only quashing order and the Government do not have to remedy the wrong for those affected before that order takes effect. That is a serious breach of the principle that proven wrongs should carry a remedy.
I pointed out on Report that this involves us or may involve us in breaching our international obligations, in particular in environmental cases, under Article 9 of the Aarhus convention, the obligation to provide an adequate and effective remedy to all affected by a breach by public authorities in environmental law, and in ECHR cases under Article 13 to ensure provision of an effective remedy for breach of the convention. I believe those principles outweigh any possible usefulness of the availability of a tool in the judicial toolbox to relieve government of the effects of unlawfulness.
It is said that unlawfulness may have worked to the benefit of some who relied on the law as they erroneously, as it turned out, believed it to be. For such unusual cases, any unfairness can be cured by administrative action or by suspended quashing orders with conditions to which we have not taken objection and/or by changing the law if Parliament sees fit to do so.
That said, the elected House has rejected our amendments, so my amendment in lieu is tabled to bring into sharp focus only the second factor that I have outlined—the lack of a remedy for all those adversely affected by previous government unlawful action if a prospective-only quashing order is made. My amendment in lieu would require the court to seek to avoid making such an order in cases where a person who would have been entitled to seek a remedy because of the unlawfulness in question would be deprived of a remedy by the fact that the quashing order was prospective-only. The amendment would address the point I have been making and would keep us in line with our international obligations.
I would like the Minister to accept it but if he cannot do so, as he indicated from the Dispatch Box in opening, then in line with the confidence that he expressed that it is intended that the courts should exercise the discretion, now thankfully presumption-free, with a view to avoiding the deprivation of a remedy that my amendment seeks to address, I would like to hear that assurance repeated and clarified.
I should add that I have been very grateful to the Minister and to this colleague in the other place, Minister Cartlidge, for engaging with me on this issue in two meetings and to the Bill team for the helpful pack it has put together relating to the principles applied by the Canadian courts addressing the question of prospective-only quashing orders. Those cases in Canada have, of course, persuasive authority in this jurisdiction and it is clear that the Canadian courts have exercised the discretion with great care. They have worked on the basis that before a prospective-only quashing order may be justified, first, the court’s decision on unlawfulness must represent a substantial change in the law and, secondly, the interests of all litigants and potential litigants must be carefully considered and balanced. I point out that without the removal of the presumption, those principles would not be applied in this jurisdiction. They are, however, principles that I endorse and which underlie my amendment in lieu. I await the Minister’s further response with interest.
Lord Anderson of Ipswich (CB)
My Lords, the presumption in Clause 1 was a curious and misshapen thing—so much so that I did wonder when moving against it whether it was always intended to be the hunk of meat that would be thrown off the back of a sledge to distract the ravening wolves. But these things do not dispose of themselves and I am grateful to the noble and learned Lord, Lord Stewart of Dirleton, to the Justice Minister, James Cartlidge, who is also my MP, and, before them, to the noble Lord, Lord Wolfson, for the good grace, courtesy and good sense with which they agreed to put it out of its misery.
I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.
Lord Pannick (CB)
My Lords, may I pay tribute to the noble Lord, Lord Wolfson of Tredegar, on his resignation as Minister of Justice? He played a significant role behind the scenes in ensuring that the Government have made the welcome concession of agreeing to the amendment from the noble Lord, Lord Anderson, to remove the presumption. The noble Lord’s resignation has confirmed, if there were any doubt, his commitment to the rule of law. His resignation will be welcomed only by his senior clerk at One Essex Court Chambers in the Temple as he returns to the commercial Bar, as well as to the Back Benches.
On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions.
As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I rise diffidently to agree wholeheartedly with the approach of the noble Lord, Lord Anderson, to this legislation. I strongly support Motion A; I cannot, I am afraid, support Motion A1 from the noble Lord, Lord Marks. I suggest that it would in fact compromise and complicate what is a valuable, new, flexible, broad power that gives a judge the ability to make whatever order he or she thinks is best calculated to do justice in the individual case, and to meet the problem that we have encountered over many years of not having any power to validate retrospectively anything that has happened in the past. I do not know whether anyone noticed the piece I wrote in the Times about my noble and learned friend Lord Hope’s Ahmed case, but that was a classic case in point which shrieked out for this new power.
So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.
Lord Garnier (Con)
My Lords, I join the noble and learned Lord, Lord Brown, in all that he has said, and I say with greater confidence, albeit with some reticence, if that is not a contradiction, that I disagree with my friend, the noble Lord, Lord Marks, with whom I am a fellow member of chambers. I think it is fair to say that the Back Benches of the Conservative Party in this House are now more greatly adorned by the promotion, I would say, of the noble Lord, Lord Wolfson, to these Benches, and I look forward to his contributions from his Back-Bench seat. The noble Lord, Lord Pannick, correctly described my noble friend, but he and I need to be very careful because we now have yet another competitor for a car park space in Brick Court.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too would like to thank the Minister for his careful introduction to the Motions before us today. I would also like to thank all those who worked to improve this Bill during its progress through both Houses, and I single out my honourable friend the Member for Hammersmith, Andy Slaughter, and Alex Cunningham, the Member for Stockton North. I would also like to thank noble, and noble and learned, Lords from the Cross Benches who have taken an active interest, particularly in the judicial review parts of this Bill, which has led to the substantial improvements which we have just heard about.
There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today.
I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this
“extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.]
I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord.
In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion.
I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place.
The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name.
Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on.
I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way.
Lord Stewart of Dirleton (Con)
My Lords, I have listened to submissions from your Lordships in the course of this short debate at the ping-pong stage. I think the House and those who spoke were united in the warm words for my noble friend Lord Wolfson of Tredegar, who is indeed, as your Lordships said, a grievous loss to the Front Bench. That loss is offset only by his arrival on the Back Benches, where I am sure he will contribute his wisdom, his ready wit and his good sense to our debates going forward. As to the matter of car parking at the chambers of the noble Lord, Lord Pannick, and those of my noble and learned friend Lord Garnier, I regret that that matter lies outwith the power of the Government to seek to resolve.
On the point just taken from the Opposition Front Bench by the noble Lord, Lord Ponsonby, I reiterate my point. I accept all that he said about the impact of inquest proceedings on families and the well-expressed and carefully considered arguments advanced by family groups and pressure groups, and in this House and in the other place. However, I return to the central point, which is that in light of the review procedure put forward by the Government—a review published on 15 March that is to be followed by a full consultation, after which the Government hope to publish a consultation response in autumn 2022—I urge the House to take the view that the amendment the noble Lord proposed from the Front Bench is premature.
On the point taken by the noble Lord, Lord Marks, I am happy to reiterate what I said about the nature of the ouster clause in these proceedings, in the manner in which it has been formulated, in the hope that what I have said from the Dispatch Box indicates that the Government treat this as a particularly focused instrument.
I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, speaking as he does with particular knowledge of these matters, having sat in the Cart hearing itself. I accept and adopt respectfully his confidence in the ability of our judiciary properly to use the tool in the judicial toolbox—the club in the judicial golf bag—which the Bill seeks to give.
In those circumstances, I return to my invitation to the House to accept the Bill as received from the Commons. I express my gratitude to all noble Lords who have contributed today, who have courteously and thoughtfully engaged with me and, for that matter, the Minister in the other place. On behalf of my noble friend Lord Wolfson of Tredegar, who of course carried out the bulk of work on this measure, I thank noble Lords for their thoughtful engagement with him, in the course of his stewardship of the Bill in your Lordships’ House.
Lord Mackay of Clashfern (Con)
My Lords, I would like to say something about the proposal in relation to the coroners’ court. The problem in the coroners’ court is that well-heeled litigants are allowed to participate in the coroners’ inquest when the people with real interest, namely the relatives of the deceased whose death is being inquired into, are not able to afford any protection at all. The well-heeled litigants are able to use litigation experts—counsel, senior counsel maybe—and leave the relatives of the deceased without anything at all in the way of legal assistance.
This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid.
Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides.
Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.
Viscount Hailsham (Con)
My Lords, may I make one observation about Motion C1, which I am minded to support? It will bring a clear recommendation to Parliament within a year. This seems to be a very strong recommendation for it.
Lord Marks of Henley-on-Thames (LD)
My Lords, I thank everybody who has spoken in this short debate. I also thank the noble and learned Lord, Lord Mackay, and the noble Viscount, Lord Hailsham, for the spirit of what they said on the legal aid point. I thank the noble and learned Lord for his helpful suggestion. I am also grateful to the Minister for the way in which he opened this debate and for his careful response. I add my warm thanks for the contribution of the noble Lord, Lord Wolfson, during his time as Minister, and for his engagement with all of us on the Bill and on many others, going back to last year and to what is now the Domestic Abuse Act.
I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments.
At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1.
Motion A1 (as an amendment to Motion A) withdrawn.
Motion A agreed.
Motion B
Lord Stewart of Dirleton
That this House do not insist on its Amendment 5, and do agree with the Commons in their Amendment 5A to the words restored to the Bill by the Commons’ disagreement to Lords Amendment 5.
Lord Stewart of Dirleton (Con)
My Lords, I have already spoken to Motion B. I beg to move.
Motion B agreed.
Motion C
Lord Stewart of Dirleton
That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.
Lord Stewart of Dirleton (Con)
My Lords, I have already spoken to Motion C. I beg to move.
Motion C1 (as an amendment to Motion C)
Lord Ponsonby of Shulbrede
At end insert “and do propose Amendment 11B in lieu—
“Independent review of publicly funded legal representation for bereaved people at inquests
(1) The Lord Chancellor must commission an independent review of the need for provision of publicly funded legal representation for bereaved people at inquests not more than six months after the passing of this Act.
(2) The review must be chaired by a person appointed by the Lord Chancellor.
(3) The review must include a consultation with interested stakeholders, whose submissions must be published.
(4) The Lord Chancellor must publish the outcome of the review and lay it before Parliament no later than one year after the passing of this Act.””
Royal Assent
Thursday 28th April 2022
(2 years, 6 months ago)
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