Judicial Review and Courts Bill

2nd reading
Monday 7th February 2022 Lords Chamber

Second Reading

18:21

Moved by

[Lord Wolfson of Tredegar]

That the Bill be now read a second time.

[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.

18:37

[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.

18:46

[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.

18:54

[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.

18:59

[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.

19:05

[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.

19:09

[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.

19:14

[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.

19:19

[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.

19:25

[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.

19:32

[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.

19:38

[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.

19:48

[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.

19:53

[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.

19:59

[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.

20:05

[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.

20:11

[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.

20:17

[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.

20:22

[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.

20:27

[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.

20:30

[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.

20:41

[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.

20:49

[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.

Bill read a second time and committed to a Committee of the Whole House.