Ukraine

Debate between James Cartlidge and Andy Slaughter

Tuesday 19th December 2023 Commons Chamber

[James Cartlidge]

My hon. Friend, who of course served in intelligence, makes some excellent points. On the particular importance of artillery, I have already spoken about the volume of shells and the guns that have been gifted, but I should add the spare parts to support them, which are easy to forget about. I spoke earlier about the Ukraine defence contact group. I recently attended a Teams call with all my fellow Ministers involved in that, under US leadership. Country after country listed its latest gifting, including artillery and many other munitions. However, my hon. Friend is right to say that we need a long-term plan. I think there is huge determination across the west and all our allies to continue this effort. Of course it is challenging, but that is why we need to bring in that additional element of ensuring that Ukrainian industry can start to rise to the occasion.

[Andy Slaughter (Hammersmith) (Lab)]

The language from the Government remains robust, but the details of practical help, military and otherwise, are lacking. There are 12 days left of this year, and we still do not have a full schedule for what aid the Government will provide for 2024. When can we expect to have it?

[James Cartlidge]

I respect the hon. Gentleman, with whom I spent time at the Ministry of Justice, but he has suggested that this is “talk”. We are one of the key reasons why Ukraine is still a free country. It has regained about 50% of the land taken by Russia, and we played a decisive role in that. I know that there is strong consensus on keeping it going, but I hope that that can be recognised. I have already listed the enormous amount of ordnance that we have provided: 300,000 artillery shells and 400 million rounds of ammunition. Of course we want to keep on doing that, and we are. I have also explained how we will be supporting Ukraine in the naval domain, which I believe will be crucial.

Wagner Group: Sanctions Regime

Debate between James Cartlidge and Andy Slaughter

Wednesday 25th January 2023 Commons Chamber

[James Cartlidge]

I repeat my earlier point about the actions we are taking on SLAPPs. We have already had the call for evidence and we will bring forward primary legislation.

[Andy Slaughter (Hammersmith) (Lab)]

Are the Government serious about tackling the use of SLAPPs? Threats of libel action by the Conservative party chairman over his tax affairs, use of the non-disclosure agreement by the Justice Secretary to silence journalists, and the Home Secretary’s attempt to stop the BBC reporting serious domestic violence by an agent of the security services when she was Attorney General, suggest that they prefer concealment over transparency.

[James Cartlidge]

Yes.

Russia: UK Companies

Debate between James Cartlidge and Andy Slaughter

Wednesday 7th December 2022 Commons Chamber

[James Cartlidge]

As ever, I am grateful to the hon. Gentleman for his question. All I will say about the company in his constituency—in Marfleet, I think—is that companies divesting their interests in Russia will undoubtedly have an economic impact at home. They will have gone into that market for a commercial reason and there will be a commercial impact if they divest. We have to do everything possible to show our resolve to the people of Ukraine. That includes strong economic sanctions, even if they have an impact here, but by far the biggest economic impact is on our economy from the enormous surge in energy prices and the resulting inflation. Global inflation will drive the economy around the world to experience a hiatus in growth. We want to see growth return, and one of the reasons that we have windfall taxes is to raise funding to support our constituents and businesses through this winter.

[Andy Slaughter (Hammersmith) (Lab)]

The Exchequer Secretary cannot have failed to notice the exhibition in Portcullis House showing the gross human rights abuses committed by Russian forces in Ukraine. As well as justice, the victims of these war crimes deserve compensation, but so far that has not come from seizing and distributing the assets of Putin’s allies or the Russian state. Why can it not come from BP and others’ Russian earnings?

[James Cartlidge]

I always enjoyed working with the hon. Gentleman in my previous position at the Ministry of Justice. He makes an extremely powerful point. The abuses that we have seen have been horrific, and he is right to draw attention to them. A great range of activities are taking places in that regard—for example, the significant support that we have given to the International Criminal Court at The Hague so that it can look into those abuses. Of course, it will be very difficult until we get a resolution to the conflict, which is why the most important thing we can do in all these cases is to continue supporting the people of Ukraine, their armed forces and the humanitarian effort.

Oral Answers to Questions

Debate between James Cartlidge and Andy Slaughter

Tuesday 5th July 2022 Commons Chamber

[James Cartlidge]

I am grateful to the right hon. Lady. Further to the question of the hon. Member for Kingston upon Hull East (Karl Turner), I can confirm that I have met the chair of the Criminal Bar Association seven times since the publication of the independent review of criminal legal aid. My officials meet representatives of the CBA almost weekly, so there is lots of engagement going on. I meet frequently with the Bar Council and the Law Society, because we have to remember the criminal solicitors’ view in all this as well. I can clearly confirm that we have decided to increase most of the key criminal legal aid fees by 15% from the end of September. We think that is a generous offer, as I am sure most of our constituents would agree, in the light of what is happening with the economy. I urge those engaged in disruption to reconsider so that we can get back to reducing the backlog, instead of threatening to increase waiting times.

[Andy Slaughter (Hammersmith) (Lab)]

The courts system relies on litigants having access to appropriate advice and representation, so why are the Government cutting funding to the Support Through Court charity and extending fixed recoverable costs to housing cases that will prevent law centres and other providers from having the means to represent vulnerable tenants against bad landlords, including in disrepair and unlawful eviction cases?

[James Cartlidge]

On the hon. Member’s first point, I have provided a written answer, which I will happily forward to him—I cannot remember if the question was from him—in which the existing position on funding was clarified. I am confident that we have put in a huge funding package across the justice system, with £477 million to support court recovery in the spending review. That is a significant investment, but I am more than happy to look at what has happened to funding for specific charities.

Judicial Review and Courts Bill (Eleventh sitting)

Debate between James Cartlidge and Andy Slaughter

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

[James Cartlidge]

Ah! That’ll do.

[Andy Slaughter]

That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

--- Later in debate ---

[Andy Slaughter]

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

[James Cartlidge]

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

Judicial Review and Courts Bill (Eleventh sitting)

Debate between James Cartlidge and Andy Slaughter

Tuesday 23rd November 2021 Public Bill Committees

James Cartlidge

-

Ah! That’ll do.

Andy Slaughter

- - Excerpts

That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

--- Later in debate ---

Andy Slaughter

- - Excerpts

On a point of order, Mr Rosindell. Before we conclude our proceedings on the Bill, I wonder whether it might be appropriate to offer my thanks, on behalf of me and my colleagues, to everyone who has contributed to making this, certainly compared with other Bills that I have done in the past, a smooth-running and not unenjoyable process, if I may put it that way. I will not take up a lot of time, but I would particularly like to thank you, Mr Rosindell, and Sir Mark for the efficient and not indulgent, but certainly sympathetic, way in which you have chaired these proceedings. I know that that has been difficult, particularly today, because we had Sir David Amess’s memorial service this morning. We all respect the fact that you and Sir Mark have chaired the Committee with your usual great skill and attentiveness.

I thank the Clerks, who have given us extraordinary assistance on technical matters relating to the Bill, for the way in which they have helped us, and helped me, with my rustiness, to get through the first Bill that I have done in this capacity for a number of years. I also thank everyone else who makes this a smooth-running process. That includes the Doorkeepers, Hansard and everyone else on whom we rely to ensure that these things go as smoothly and efficiently as possible.

May I say thank you to a few other people? I thank the Minister and his colleagues for the way in which they have approached the Bill. There are some fundamental differences between us. We voted against the Bill’s Second Reading and, sadly, we have not managed to carry many votes here to improve the Bill. There are a number of improvements and amendments within the changes to the courts procedure that we would fully support, but there is, at the heart of the Bill, something that we find worrying, which is a further attempt by the Executive to encroach on the discretion of the judiciary, which is one of the great sacred parts of our constitution, so I am glad that at least we have resisted today any further attempts to do that.

Notwithstanding that, this Committee has undertaken a good-natured, but at the same time thorough, investigation of the provisions. I thank all my colleagues for their assistance and prompting—even when I go on for a long time—but I would particularly like to thank my hon. Friend the Member for Stockton North, who, seeing me just beginning my role and being thrown in at the deep end with the Bill, stepped up, notwithstanding having just been a shadow Minister on the Police, Crime, Sentencing and Courts Bill, to carry the burden of dealing with the substantial bulk of the provisions here. Sadly, he is not with us today because he has tested positive for covid. Therefore, I have been told to go off and get a PCR test as well; we probably all have as a consequence of that. I gather that my hon. Friend is tired but otherwise in good spirits. He is an extremely kind and courteous gentleman at all times, and I am sure that we all wish him a speedy recovery.

We have come almost to time on the Bill. We thought that we might go short; we have taken our time, but we have not taken more time. All I will say in conclusion is that there has been a culinary theme to the Bill. We had cherries on the first day, and ended with curries on the last, but I hope that, in looking at the transcripts, those who scrutinise us will not think we have made too much of a meal of it.

James Cartlidge

-

Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.

I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.

This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.

It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.

Judicial Review and Courts Bill (Ninth sitting)

Debate between James Cartlidge and Andy Slaughter

Thursday 18th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

The employment dispute resolution system has responded impressively to the challenges presented by the pandemic. Despite the enormous challenges they faced, employment tribunals have now succeeded in returning to pre-covid levels of hearings. I should stress, because we have had a wide-ranging debate about technology and the role of digitisation in the courts, that a key reason for that is that employment tribunals have been among the greatest users of technology in enabling hearings to go forward. However, they still face significant challenges from a growing backlog. The pandemic has highlighted the need for a speedy and efficient process for making and amending rules for the employment tribunals.

Since the establishment of employment tribunals in 1996 under the remit of the now Department for Business, Energy and Industrial Strategy, responsibility for the rules and governance of employment tribunals has rested with Ministers in BEIS, as the Department responsible for employment law. This is the only area of the tribunal system where responsibility rests with a Minister in another Department; all other matters heard in the justice system have procedural rules that are the responsibility of independent judicial-led committees or of the Lord Chief Justice.

Clause 32 transfers the powers to make rules for the employment tribunals from the Secretary of State for BEIS to the tribunal procedure committee. It also makes the same committee responsible for rules in the employment appeal tribunal. Being judiciary-led, the TPC is better placed to make these rules. The transfer will allow for the development of a more closely aligned tribunal system. It means that we can respond more quickly when we need to amend procedure rules, for example to help to address the backlog in claims or in circumstances such as the pandemic. Schedule 5, introduced by clause 32, gives the TPC the same powers to make rules for the employment tribunals and the employment appeal tribunal as for the first-tier and upper-tier tribunals, and aligns the rule-making process.

It is important that the TPC has the right knowledge and experience when considering making or amending rules. Schedule 5 provides for two additional members to sit on the TPC. One will be appointed by the Lord Chancellor and will have experience of practice or advising in the employment tribunals and the employment appeal tribunal. The second will be appointed by the Lord Chief Justice and will have experience of sitting in employment tribunals. This will ensure that the TPC can call on the right level of expertise when making decisions.

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to be here again under your chairmanship, Sir Mark. Let me say first that we are not opposed to what the Government are proposing in this clause and, indeed, this part of the Bill, which is largely administrative. There are a few issues that we wish to raise. I think that I can do that logically under this clause and then be very brief—or even silent—on some of the other clauses.

The Minister is right that employment tribunals—industrial tribunals, as they were—go back some years and have a distinct history. In some ways, they were the forerunners of the tribunal system, which has effectively overtaken them in terms of procedure and organisation. Employment tribunals have a broad jurisdiction for employment matters, save in important respects such as their very limited role in breach of contract cases and no role in relation to personal injury. They are administered by Her Majesty’s Courts and Tribunals Service, but are outside the tribunal structure.

As the Minister said, employment tribunals are under either the joint supervision of the Ministry of Justice and the Department for Business, Energy and Industrial Strategy, or the Secretary of State for BEIS. That is anomalous. There have been many attempts over the years to correct and address the issue. Such proposals were made back in the 2001 Leggatt review, so we are catching up after 20 years. There have been various other measures in the interim. The 2004 White Paper proposed a tribunal process that should be separate from both the civil courts and the rest of the tribunal structure. The 2015 Briggs review preferred to put employment tribunals in with the civil courts. A case can be made for either of those options, although the drawback of placing tribunals in the civil court ambit is the lack of provision for lay members. Lay members are an important part of how employment tribunals work, and we would be loth to lose them.

There can also be conflicts of interest. BEIS is quite a substantial employer, and there could be something of a conflict by placing this part of the tribunal system within a non-judicial Department. For all those reasons, and the fact that we have a working TPC, what the Government have proposed seems to have a certain logic. The “but” is—and this is a feature of the Bill generally—that opportunities are being missed.

The Law Commission recommended last year that the Government look at time limits for bringing claims, look again at the issue of breach of contract, which I have already mentioned, and look at the key element of enforcement. Many employees—despite the difficulty of bringing claims, particularly if they have been dismissed or the claims deal with complex issues of law—win their cases and then cannot enforce against the employer. There is nothing to deal with those points. The Minister began by saying he thought the tribunal law system is doing a good job, and the people who work within the employment tribunal system do a very good job. However, they work under a great deal of pressure, and the Government have contributed to that pressure.

We have the debacle over charging for bringing claims, which the Government introduced in 2012-13. Unsurprisingly, to anyone except perhaps the Government, the number of claims fell by two thirds after that. Consequently, they felt able to shut down large parts of the network. The Supreme Court ruled that unlawful and claims began to climb again, although a lot of the damage that was done has not been unpicked. The latest figures I have show that, of the £32 million that was supposed to be repaid to claimants, only £18.5 million has been repaid. That is shocking. It shows that people have been unlawfully deprived of what should rightfully be theirs and that they paid fees that were deemed to be unlawful.

The point here is that, the Government having depressed the level of claims in a dramatic and significant way, and then seeing them rise again, there has been no sufficient response to that. The backlog was down at 22,698 in March 2018, but according to figures from March this year—the Minister may have more recent ones—it is now at 50,287. That has more than doubled in two years. Part of the reason is that there has been no strategic effort to restore the employment tribunal system to what it was before earlier cuts were made. We are not short of suggestions. Last summer, the Employment Lawyers Association produced a long list of what the Government could do: through ACAS; reviewing of the administrative capacity of each tribunal; using standard case management procedures; dealing with case management applications on the papers; using hybrid hearings where accommodation is a problem; improving the provision of legal advice; and allowing multiple claims to be put on one claim form.

I would like to see a number of things in the Bill, and the Minister may be able to address some of these points when he responds. The Minister says the measures will make the process more streamlined, which they may do, but only up to a point. The proposals will address the real, chronic and ongoing problems in the employment tribunal system only to a limited extent. We have the debacle over the fees, where many are deprived of their rights and are unable to bring claims or, after bringing claims, are not refunded the money they are owed. There is a long wait to get to a tribunal—I think the average resolution time is 45 weeks, which is appalling—and we also have those problems with enforcement, even if employees win their case. The system really is in a parlous state. I wish there were measures in the Bill, or elsewhere, to address those issues.

[James Cartlidge]

I will respond briefly, because I really would emphasise that the clauses are limited in their impact on employment tribunals. I certainly hope that no one is under the impression that I am pretending they are a wholesale, comprehensive reform of the employment tribunal system. I have in no way implied that.

I welcome the recognition by the hon. Member for Hammersmith that it is, in his words, anomalous that the rule-making powers are held by the Department for Business, Energy and Industrial Strategy. To that extent, I therefore assume he welcomes the transfer. As he said, it certainly makes sense, and there are many positive aspects in its favour. Having more flexibility in the way the rules are made for employment tribunals will enable them to better respond to the backlog and related issues. Of course, that is not in itself enough to drive down the backlog or improve the overall user experience.

The hon. Gentleman asks what other steps the Government are taking. We are recruiting more employment tribunal judges. We also have a very positive initiative called the virtual region, which we estimate will save about 500 sitting days in employment tribunals. It is a virtual region of judges who, because cases are heard online, can sit pretty much anywhere in the country and hear an employment tribunal case anywhere else in the country, underlining how important technology has been.

It is a bit strange that, when my right hon. Friend the Member for South Holland and The Deepings—who is not here this morning—spoke about his desire to revert to in-person hearings and roll back the digital progress we are making, he seemed to get a lot of sympathy from the hon. Member for Hammersmith. If we were to do that in the employment tribunal sphere, we would have a massive backlog, and we would have far more limited means of dealing with it. I am bound to say that we would be reducing access to justice, both for those seeking to bring claims and in terms of the judicial ability to respond with things like the virtual region.

I will not go any further. One should recognise when clauses have a very specific purpose, which these do. The measure is positive and will help us to improve matters and, alongside some of the other things we are doing, it shows we are driving forward a positive agenda for employment tribunals.

Question put and agreed to.

Clause 32 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 33

Composition of tribunals

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

The clause will make the Lord Chancellor responsible for determining the composition of employment tribunals and employment appeal tribunals through secondary legislation. That duty can be delegated to the Senior President of Tribunals, the President of Employment Tribunals, or the President of Employment Appeal Tribunals. It also sets out a framework within which the Lord Chancellor or the presidents must exercise the power. That is the same approach as in the wider unified tribunal system. The clause will align the approach taken in employment tribunals to those tribunals, and will ensure that panel composition is a judicial function.

That does not mean that we will lose the unique characteristics of employment tribunals, or that we intend to move away from the current structure. Rather, the clause will provide the necessary flexibility to ensure that the composition of an employment tribunal or employment appeal tribunal can be tailored to the needs of users and the complexities of cases. It will mean that the handling of cases can be streamlined while ensuring that tribunals have the right composition to make fair and informed decisions.

[Andy Slaughter]

Again, we do no oppose the change. I make only one point, which I think the Minister alluded to, but that it may be useful to have on the record. It clearly makes sense to give discretion to the Lord Chancellor in terms of the composition of tribunals, but the distinctive lay element of them has been successful over the years. We would not want the change to alter that. The presumption should be in favour of it, save in circumstances where there are good reasons to derogate from it.

[James Cartlidge]

An individual with experience of appearing before employment tribunals and an employment tribunal judge or lay member will be appointed to sit on the committee so that the needs of the wider employment sector continue to be represented in the rule-making process. The tribunal procedure committee is also able to request external expertise to support the development of rules, including a representative to reflect the needs of business.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Saving for existing procedural provisions

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

The introduction of legal case officers has played a valuable role in helping employment tribunals to tackle the demands of the pandemic. They free up judicial time by allowing straightforward non-contentious administrative decisions to be made by legal case officers under the supervision of an employment judge. The clause will align an employment tribunal’s power of delegation to legal case officers with the wider tribunal system. It will also allow the TPC to make rules for legal case officers. The decisions of legal case officers are always reviewable by the judiciary, and that will remain the case.

[Andy Slaughter]

We do not oppose the clause. There is always a hesitancy in transferring powers from a judiciary to a lay or administrative officer. As the Minister says, it is done in other parts of the tribunal system. We just wish for reassurance that it will be kept under review, and that where changes are made—I am talking about the system, rather than individual cases—we will look at it again, and ensure that it is working properly and that applicants are not disadvantaged in any way by the changes.

[James Cartlidge]

Yes, that is a fair point. Judicial functions can be delegated to HMCTS staff across tribunals and the wider civil justice system, including in employment tribunals, as the hon. Gentleman acknowledged. The Bill gives the tribunal procedure committee the same powers to make employment tribunal rules on judicial delegation as it has for the unified tribunals, so that it is consistent. This will allow for the creation of harmonised tribunal rules and greater alignment across the tribunal system. We always keep all matters under review. This positive change is in keeping with the way the wider unified tribunal system works.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clause 36

Responsibility for remunerating tribunal members

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

This is the final clause related to employment tribunals. As a consequence of the history of the establishment of employment tribunals, authority for the remuneration of pay and expenses for employment tribunal judges currently rests with BEIS, in contrast to the remainder of the tribunal system, where responsibility for the remuneration of panel members sits with the Lord Chancellor. The clause will transfer responsibility for that remuneration from BEIS to the Lord Chancellor, bringing employment tribunals in line with the wider tribunal system.

Question put and agreed to.

Clause 36 accordingly ordered to stand part of the Bill.

Clause 37

Discontinuance of investigation where cause of death becomes clear

[Andy Slaughter (Hammersmith) (Lab)]

I beg to move amendment 69, in clause 37, page 49, line 33, at end insert—

“(4) After subsection (2), insert—

(2A) The coroner is not to decide that the investigation should be discontinued unless—

(a) the coroner is satisfied that no outstanding evidence that is relevant to the death is available,

(b) the coroner has considered whether Article 2 of the European Convention on Human Rights is engaged and is satisfied that it is not,

(c) there are no ongoing investigations by public bodies into the death,

(d) the coroner has invited and considered representations from any interested person known to the coroner named at section 47 (2)(a) or (b) of this Act, and

(e) all interested persons known to the coroner named at section 47 (2)(a) or (b) of this Act consent to discontinuation of the investigation.”.

This amendment would ensure that certain safeguards are met before a coroner can discontinue an investigation into a death.

[Andy Slaughter]

We now come to the part of the Bill that deals with coroners, to which we have tabled a number of amendments and new clauses. We appreciate that the clauses in the part of the Bill we have just discussed, and indeed in other parts of the Bill, are very much a template for the Government to take forward procedural changes to parts of the courts and tribunal systems. We essentially have two things to say about that.

First, we are not against any of that per se, particularly where the aim is to make what is proposed more streamlined, efficient and economical. However, we must look at safeguards, because often in the process, as we have seen in earlier parts of the Bill on criminal procedure and online procedure, there can be dangers to current users of the system that need to be addressed. Secondly, as addressed in our new clauses, the Government are not short of advice on improvements to the coronial system, including most recently through the report of the Justice Committee, which we debated in Westminster Hall, but many opportunities for improvement simply have not been taken. We highlight some of those around representation, and vulnerable representation, which we will come on to. That is disappointing, given that that report is only the latest in a whole series, going back to Tom Luce’s report in 2003—although there are many more recent than that—that have drawn attention to the limitations and the need for improvements in the coroners system. We just wish that there was more to address that, either in the Government’s response to the Justice Committee report or in the Bill.

I thank some of the organisations that provided briefings to us, including Justice, the Association of Personal Injury Lawyers and, principally, Inquest, which I will say a bit more about when we debate the new clauses. It has been an outstanding organisation in representing, and fighting the cases of, bereaved families for many years.

I have concerns about clauses 37 to 39. Clause 37 will broaden the circumstances in which coroners can discontinue investigations, Clause 38 gives coroners powers to hold inquests in writing, and clause 39 enables the wider use of remote hearings, including the power to hold remote hearings with juries. I will argue that the increase in discretion to discontinue investigations in clause 37 risks important evidence not being tested and complex cases not being publicly scrutinised. I will describe the lack of evidence to support the introduction of clauses 37 to 39 and how evidence instead suggests the need for careful safeguards to ensure that proper investigation and scrutiny is permitted where necessary, with due weight given to the wishes of the family. I will also argue that the Bill should be amended to include provision on public funding for bereaved families at inquests where state bodies are involved.

Chapter 4 deals with coroners and suggests that it will improve the efficiency of the service in the light of the backlogs in coroners’ courts due to the pandemic. The measures in clauses 37 and 38 were recently recommended by the Chief Coroner in his 2020 annual report. I am not aware of some other cause or evidence— the Minister may want to point me to some—for these measures to be introduced. It is notable that none of the conclusions or recommendations in the Justice Committee’s May 2021 report on the coroner service provides any justification for these measures, despite the Committee’s detailed analysis of the current state of the coronial system. It is extremely concerning that the argument that these measures are needed to address the covid-19 backlog of cases in the coroners’ courts is unevidenced, especially given the strong argument that the measures will lead to corners being cut and crucial opportunities for hearing and scrutinising evidence missed.

In its report, the Justice Committee found there to be

“unacceptable variation in the standard of service between Coroner areas.”

In the absence of a national coroner service, which the Committee recommended but the Government have refused, a central concern is the widespread inconsistency in approach by individual coroners in relation to all aspects of the inquest process—a postcode lottery, in other words.

[James Cartlidge]

The hon. Gentleman has twice referred to the backlog in coroners’ courts caused by the pandemic. Can I be absolutely clear? Does he accept that the pandemic has had a very significant impact on the backlog in the coroners’ courts?

[Andy Slaughter]

The pandemic has had a substantial effect on almost every aspect of our waking lives and on backlogs throughout the court system. That does not abrogate the Government from responsibility for dealing with the backlog so called, or indeed for other reasons why backlogs have been building up in the system over that time.

I mentioned Tom Luce’s fundamental review, in which he wrote:

“The phrase we have heard more than any other during the Review is ‘the coroner is a law unto himself’. Virtually every interest has complained of inconsistency and unpredictability between coroners in the handling of inquests”.

Clauses 37 and 38 will further entrench levels of coronial discretion and inconsistency, adding yet more challenges for bereaved families forced to navigate the inquest system. The Government have not evidenced how these measures will address the stated problem of reducing the backlog of cases in coroners’ courts. The latest statistics on the coroner service indicate an 18% rise in deaths in state detention. Many of those cases are complex, meaning that these provisions are unlikely to apply.

Let me deal specifically with amendment 69 and amendments 70 to 72, with which it has been grouped. Clause 37 broadens the circumstances in which a coroner might discontinue an investigation into a death. The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government claim that is a costly and unnecessary step where the cause of death may become clear through other means, such as medical records. As such, clause 37 will amend section 4 of the 2009 Act to allow for an investigation to be discontinued if the coroner is satisfied that the cause of death is clear, thus removing reference to a post-mortem as a necessary requirement for discontinuing an investigation. If the investigation is discontinued, the coroner cannot then hold an inquest into the death unless fresh evidence later comes to light or a successful challenge is brought to the decision.

There are a number of concerns about that, and about the implications of the Bill for inquests and bereaved families. Amendment 69 seeks to address three main issues: the need to test evidence; what happens in article 2 cases; and the need to safeguard the wishes of families.

On the need to test evidence, I am concerned that clause 37 would allow a coroner to discontinue an inquest based on evidence that could change if tested. The current wording states that a coroner must discontinue an investigation into an individual’s death if they are

“satisfied that the cause of death has become clear in the course of the investigation”.

While the Chief Coroner states in his 2020 annual report that such a provision could include evidence such as medical records, the Bill itself does not clarify the types of evidence that could be used, and effectively allows any evidence obtained during the investigation to be used to justify discontinuance, without the opportunity for it to be challenged at a later stage.

--- Later in debate ---

[Andy Slaughter]

The sensitivity of this is pretty clear. We have suddenly veered off to talk about backlogs in the Crown court. There will be ample opportunity to debate those matters in future. The relationship between backlogs and covid is a complicated one. No one is saying, clearly, that covid has not put pressure on the courts system—that would be bizarre—but the Minister is misinterpreting what I said. The Government have two responsibilities here. First, they must look at their responsibility for the extraordinary cuts in justice budgets that occurred post 2010, long before covid was ever thought of. For a whole raft of reasons to do with lack of legal aid, court availability because of court closures and so on—the Minister knows all the arguments—we have put ourselves in that vulnerable position, as we did in other areas, such as the NHS. The fact that the court service, including the coronial service, is in a parlous state is at the door of the Government—the Minister was not there, but his colleagues were in government during that time. So, first, they must take responsibility for that. Secondly, they must now take responsibility for reducing backlogs, whether they were caused by covid or were pre-existing before covid. Trying to exculpate himself from that, he does himself no service.

[James Cartlidge]

I look forward to debating that further. Labour have pulled their Opposition day debate on the backlog twice, one of which was for good reason, given the business that the House was debating. I will be delighted if they have an Opposition day debate on the backlog at their next opportunity, because it is important to stress the very positive things that the Government are doing.

The reason I made that point is that the whole purpose of the provisions is to streamline the courts in the coronial system, so of course it matters if the hon. Member for Hammersmith accepts covid causation in the coronial courts backlog and yet, for political reasons, the Opposition’s central message on backlog in the Crown courts magically does not relate to social distancing measures that have been so profoundly challenging to holding jury trials in particular and for cases with multiple defendants. But there we are. All I would add is that if he wants to go back to 2010, bring it on in that debate, because we know what their plans would have been had they got into government. He should always remember that.

On the specific points, I have great sympathy for those families who have had stressful cases in the coronial court or had cases in which they were disappointed with what happened. Obviously, as a Minister, I cannot comment on the specific cases raised by the hon. Gentleman. Those are determined by our independent judiciary, which is an important part of our constitution, but I sympathise with the families. Bereavement is an inherently distressing experience, we can all agree, and in part that is why we are trying where possible to address and reduce that anxiety with the measures in the Bill. For example, in this clause we are trying to reduce some of the bureaucracy that can come with bereavement.

The hon. Member for Hammersmith made a couple of other specific points about coroners’ courts and the Justice Committee report. He was recently a member of that Select Committee, and I pay tribute to his work on it, and to the Committee more broadly under the chairmanship of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). Recently, I spoke about such matters at length in a Westminster Hall debate on coroners, but to be absolutely clear, we have accepted six of the recommendations made by the Justice Committee in its report on coroners published in May. To enact some in the Bill is incredible timing—to have Committee recommendations in a Bill within six months. The obvious example is clause 41, dealing with the merger of coroner areas, which we shall come on to.

The other important specific point that I wish to make is on safeguards. Again, the hon. Member for Hammersmith is absolutely right. As I have said throughout the Committee’s proceedings, streamlining measures—generally technological, but not always, as some might be in procedure or when a hearing is held and so on— are there to improve efficiency, and in itself that can actually help families. For example, if we reduce the need to hold an inquest, particularly because it has proven to be unnecessary because the cause of death was natural causes, that can remove some of the bureaucracy that can be faced by a bereaved family.

[Andy Slaughter]

If those safeguards exist, as the Minister says, why are they not on the face of the Bill? They are, at least in part, in clause 38, which we are going on to discuss, so why would the Minister not accept some or all of the safeguards that we propose?

[James Cartlidge]

I will be addressing all the points, but the hon. Gentleman is right: clause 38 contains very significant safeguards.

The intention behind clause 37 is to provide coroners with the flexibility to discontinue an investigation into a death where a death from natural causes has become clear through means other than a post-mortem examination. It is intended that the clause will negate the need for unnecessary procedures and processes, freeing up capacity and resources for the coroner to concentrate on more complex cases. The clause should be read along with section 4 of the Coroners and Justice Act 2009, which it amends.

Amendment 69 proposes to introduce additional safeguards into clause 37, as discussed, by requiring additional conditions when a coroner seeks to discontinue an investigation into a death where the cause of death becomes clear in the course of investigation, which typically will be where medical evidence shows that the death was from natural causes. The safeguards include a requirement that the coroner seek consent from interested persons before discontinuing such an investigation. Although I understand the hon. Gentleman’s concerns, I would like to assure him that the amendment is not necessary. The 2009 Act already provides the safeguards that the amendment seeks to include in the Bill. Section 4 of the Act sets out instances where the coroner may not discontinue an investigation, which include violent or unnatural deaths, or deaths in custody or other state detention.

I also remind the hon. Gentleman that coroners are independent judicial office holders, and the way that they carry out investigations and inquests is a matter for them. Introducing a requirement for the coroner to seek consent from interested persons before making judicial decisions would be not only fettering their discretion but would, in effect, remove the decision from the coroner—that is, the judge, which is what they ultimately are—into the hands of an interested person or a number of interested persons. That is at odds with the most fundamental principle of judicial proceedings, which is that only the judge or the jury makes the decisions, having listened to all the arguments without fear or favour. We must be mindful that while interested persons have certain rights at the inquest, they do not control the inquest process or its investigations. That is for the coroner alone to determine, as a judicial office holder.

I would like to assure the Committee that in his capacity as judicial head of the coroner service, the Chief Coroner will provide guidance to coroners accompanying all changes, which we expect coroners will follow.

Amendment 70 proposes that the coroner gives interested persons an explanation as to why they are considering discontinuing an investigation, to enable them to make an informed decision about whether to consent to the discontinuance of the investigation. Section 4 of the 2009 Act, which clause 37 amends, already provides that a senior coroner must, on request, provide a rationale for the discontinuance of an investigation. We expect the coroner to work sensitively with bereaved families to address any concerns that they may have regarding the investigation into their loved one’s death. However, as I have said, the decision on the direction of the investigation, including consideration of any discontinuance, must be for the coroner alone. In any event, section 4 has a narrow remit. It is to permit the discontinuance of an investigation where natural causes are found to be the reason for the death, and not in any other instances. Every day, coroners make the decision not to investigate deaths reported to them that they determine are of natural causes. Section 4 expressly prohibits the coroner from discontinuing an investigation where the coroner has reason to suspect that the deceased died a violent or unnatural death, or died while in custody or otherwise in state detention. That position remains unchanged.

Amendment 71 goes slightly further and proposes to set out in primary legislation a requirement for the coroner to provide to the bereaved family a written explanation of why they have decided to discontinue an investigation, regardless of whether a request has been received from the bereaved family. As I have said, section 4 of the 2009 Act already provides that the coroner must provide a written explanation for discontinuing an investigation on request. We consider that that ensures that only family members who actually require the information will receive it, and that additional work is not required of the coroner when it is not needed. After all, these are streamlining measures. The Government’s intention behind the measures on coroners in the Bill is to reduce unnecessary procedures in coroners’ courts and unnecessary distress to bereaved families. The amendment runs counter to the Government’s intentions and would add additional administrative process to the system. Providing such information unsolicited could also unintentionally distress bereaved families, although I am not suggesting that that is the hon. Gentleman’s intention.

Finally, amendment 72 would require a separate appeals process to be established for bereaved families who would like to challenge a coroner’s decision to discontinue an investigation into the death of their loved one. Although I understand that the hon. Gentleman wishes to ensure that bereaved families have recourse to appeal if they are not happy with the coroner’s decision, I must remind him that there is already a route for bereaved families to challenge a coroner’s decision by seeking judicial review of the decision. In 2020, there were just 20 judicial reviews against coroners’ decisions, of which five got permission and two were successful at hearing.

Additionally, an individual may apply to the High Court, with the permission of the Attorney General, for an investigation to be carried out if the coroner has not held one, or for a fresh investigation to be held, for example if new evidence comes to light. The High Court will allow a fresh investigation only if it would be in the interests of justice, but importantly, there is no time limit for making such an application, which of course is not the case with judicial review. We therefore do not think it appropriate to set up a seemingly freestanding, separate appeals process to deal with this single element of coroners’ judicial decision making.

I hope that I have adequately addressed the hon. Gentleman’s concern and assured him that appropriate safeguards are in place. On that basis, I urge him to withdraw the amendments.

[Andy Slaughter]

That was a disappointing response from the Minister. I was looking for any or all of the following: an explanation of why there are not safeguards in the clause that go beyond what is in the 2009 Act; perhaps acceptance of some, if not all, of the suggestions that we have made; and at least reassurances that the Government will look at mitigation. It is undeniable that the effect of the processes set out in this part of the Bill is to make it more difficult for bereaved families to be active participants in the process when all the evidence is that we should be taking steps to facilitate that.

The Minister mentioned the recommendations of the Justice Committee. I can tell him that the Justice Committee was extremely disappointed with the Government’s response. I will not go into that in detail now—it is outside the scope of these amendments—but I will quote from the debate that we had recently in Westminster Hall:

“I counted at least seven major omissions from the Government’s response, and many of them have been mentioned already…One is the provision of non-means tested legal aid,”

which we are coming on to.

“One is appeals on coroners’ decisions. One is the issue of pathologists’ fees. One is the national coroner service, which the report recommends. One is the inspectorate, which the report recommends. One is a complaints procedure. The last is the independent office.”—[Official Report, 28 October 2021; Vol. 702, c. 216WH.]

The significance of that is that, individually and collectively, those recommendations of the Justice Committee were trying to give some consistency and rigour to the way that coroners’ decisions are made. The reason I quoted Tom Luce was to point out that inconsistency has been the constant complaint over the years. Coroners, in a way that is not typical of the courts and tribunal system, can produce very anomalous responses to families in that situation.

The Government have chosen not to bring forward responses on the issues that I have mentioned that were raised in the Justice Committee report, and they have been generally quite negative about them, while not ruling all of them out. However, at the very least, we need the very specific safeguards that I have mentioned. Having heard everything that the Minister has said, we will press amendments 69 and 72 to a vote. I will not oppose the clause outright, but those amendments are, frankly, the least that is necessary to offer the safeguards that we have indicated.

--- Later in debate ---

[James Cartlidge]

Over the past year, the coronial system has shown great resilience in how it has coped with the impacts of the pandemic in ensuring that death investigations have continued as far as possible. I pay tribute to our coroners and all of those who work in the coronial system. We are, however, aware that a considerable number of inquests have been delayed due to the pandemic restrictions, and coroners, along with the Chief Coroner, are looking at post-pandemic plans to ensure that the system recovers.

We expect that the coronial measures introduced in the Bill will play a major role in the coronial system’s post-pandemic recovery, as they will reduce unnecessary procedures in coroner’s courts. This will provide capacity to coroners as they address inquest backlogs in their courts. The Government’s priority remains to ensure that bereaved families are at the heart of the coronial process. The measures in the Bill support this priority. Reducing unnecessary procedures in coroner’s courts will reduce the distress of bereaved families. Clause 37 gives the coroner the flexibility to discontinue an investigation where the cause of death becomes clear and it has been revealed through means other than a post-mortem examination.

Where the cause of death has become clear otherwise than through a post-mortem examination, clause 37 will negate the need for the investigation to proceed to an inquest, reducing the distress for bereaved families. The clause does not remove the statutory requirement for a coroner's investigation into deaths in custody or other state detention to proceed to an inquest. Inquests into such deaths will still be required to take place as usual. We expect that the Chief Coroner will issue further guidance on this and the other coronial measures to ensure consistency of approach across the coroner areas.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.

Clause 38

Power to conduct non-contentious inquests in writing

[Andy Slaughter]

I beg to move amendment 73, in clause 38, page 50, line 18, after “hearing” insert—

“(e) the coroner has considered the views of any of the interested persons named at section 47(2)(a) or (b) of this Act who are known to the coroner,

“(f) all of the interested persons named at section 47(2)(a) or (b) of this Act who are known to the coroner consent to a hearing in writing.”

This amendment will ensure that inquests are not held without a hearing if that is against the wishes of the deceased’s family.

Judicial Review and Courts Bill (Tenth sitting)

Debate between James Cartlidge and Andy Slaughter

Thursday 18th November 2021 Public Bill Committees

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Rosindell. I am sure you have been told that, before the short adjournment, I had made my remarks on amendment 73 and new clause 10. I will deal with new clauses 11 and 12 briefly because I dealt with most of the points on new clause 11 in my opening remarks on the group.

New clause 11 asks for the removal of the means test for legal help prior to an inquest hearing. It is complementary to new clause 10, which deals with representation. As I indicated, the Government have given certain assurances on legal help and on representation for bereaved families at inquests. We are keen to hear more details on that. However, what we have heard so far does not go far enough, or in this case, fast enough. Legal help is important, because as soon as a death occurs, complex legal processes are triggered involving multiple interested persons and agencies. Families often need expert advice on areas such as access to and release of the body, post-mortems, communication with investigation teams, securing of evidence, inquest scope, witnesses, article 2 inquests, criminal investigations and so on. As previously highlighted, legal help can significantly impact the scope and quality of an inquest. It is imperative that families secure specialist legal advice at the earliest possible stage. Until the Government remove the means test for legal help, that will not be possible for a significant number of families. I therefore propose new clause 11, which would remove the means test in legal aid applications for legal help for bereaved people at inquests, as the Government have committed to doing for advocacy services.

New clause 12 would bring the definition of family in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in line with the definition used in the Coroners and Justice Act 2009. Article 10(4) of LASPO refers to services offered only to members of the deceased’s family. The amendment would bring that definition of family in line with that used in the 2009 Act, ensuring that the eligibility for those services includes an “Interested Person”, which as per that definition can be a spouse, child or sibling, but can also be a child of a sibling, a partner, civil partner, grandparent, step-parent or half-sibling. Crucially, that definition also covers a personal representative of the deceased and others acting in an official capacity on behalf of the deceased. That will apply where there is a personal representative who may not be directly related. This change has the common-sense advantage of making the legal aid eligibility under LASPO consistent with the 2009 Act.

An example of why that is important comes in the case of an ex-prisoner who had no or very little contact with her family owing to her time in prison and other factors. The only person who could represent her interests was someone she had become close to in her community, and whom she had named in a letter to her probation officer as next of kin. The coroner and all the interested parties treated this person as next of kin, but despite that, the Legal Aid Agency maintained that funding could not be provided because the person was not family under the definition set out in LASPO. I therefore propose new clause 12, which would bring the definition of family in LASPO in line with the definition used in the 2009 Act.

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

It is a pleasure to serve under your chairmanship, Mr Rosindell. Amendment 73 proposes to set out in primary legislation the requirement for a coroner to seek consent from interested persons before deciding on whether to hold an inquest without a hearing. The intention of clause 38 is to allow coroners flexibility to hold cases without a hearing where they determine there is no requirement to hold one. The clause is focused on non-contentious cases, and while it will be for the coroner to determine what constitutes a non-contentious case, we expect that these will be cases in which the bereaved family is content not to attend a hearing.

I understand that the vast majority of the 30,000 inquests heard each year are held with only the coroner and their officer in the courtroom, speaking into a recording device. In these cases, it is simply unnecessary to hold hearings and to prolong the process for bereaved families. Safeguards for clause 38 are already set out clearly in subsection (2), which states that the coroner has to have

“invited representations from each interested person known to the coroner”,

and cannot decide that a hearing is unnecessary if an interested person

“has represented on reasonable grounds that a hearing should take place”.

Coroners also cannot proceed without a hearing unless they think the public interest would not be served by having one. As I said on previous clauses, coroners are independent judicial office holders. How they conduct their investigations and inquests is a matter for them. Introducing the concept of consent into the coroner’s decision-making process is tantamount to fettering a coroner’s discretion. Notably, amendment 73 does not address the entirely possible eventuality that consent may be unreasonably withheld.

I turn to the motions relating to legal aid. As hon. Members know, I am sympathetic to the difficulties facing all bereaved families. The Government believe that affected families should be at the heart of any inquest process. The coroner’s investigation, including the inquest, is generally an inquisitorial, fact-finding process; a narrow-scope inquiry to determine who the deceased was and how, when and where they died. This means that, for the vast majority of inquests, legal representation and legal aid are not necessary. New clause 10, which would expand access to legal aid at inquests, would run counter to that approach. There is a risk that additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which could prolong the distress of a bereaved family.

The hon. Member for Hammersmith made some perfectly reasonable points. He referred to the oral evidence that we heard from André Rebello. I remind Members that André Rebello is a senior coroner operating in the north-west of England and the honorary secretary of the Coroners’ Society of England and Wales. As he said:

“A coroner’s jurisdiction is inquisitorial. It is an inquiry; it is not litigation.”

He also said:

“Where there is representation…where the properly interested persons are identified, they have rights with regard to disclosure of advance information, but thereafter their duty is to assist the court in finding the true facts as to who the deceased was, when and where they died, and by what means and in what circumstances they came by death in certain cases. That is all done without determining criminal liability by a named person or any question of civil liability. This is an inquest, not litigation.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 35-36, Q36-38.]

It is worth pointing out that witnesses are examined, not cross-examined, for precisely that reason.

The Government recognise that this is a difficult time for bereaved families and have been working on several measures to make inquests more sympathetic to the needs of bereaved people. We have engaged with the Chief Coroner on training for coroners and officers; published new guidance on coroners’ services for bereaved people; developed a protocol that, among other matters, ensures that where the state is represented it will consider the number of lawyers instructed so as to support an inquisitorial approach; and building on that protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September.

For bereaved families who need legal help, advice and assistance is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask. For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme where certain criteria are met. Where these criteria are met, the Government are of the view that the process should be as straightforward as possible. With that in mind, we have already committed to removing the means test for exceptional case funding applications for representation at inquests and for legal help at an inquest where representation is granted. I said in Westminster Hall, and will say again in answer to the hon. Gentleman’s question, that we are in the process of drafting the clauses for a statutory instrument, which I believe will be legislated for early in the new year. I am afraid that I cannot give more detail than that, but it does mean that we will be bringing this measure forward relatively imminently.

[Andy Slaughter]

I am grateful for that, and I will not press the Minister further on timing beyond “the new year”, although we know that that could last up until December. However, is he saying that the measures on legal help will be dealt with at the same time and in the same way as those relating to exceptional case funding?

[James Cartlidge]

I was just about to come on to the issue of legal help, because the hon. Gentleman asked about that earlier. Legal help and advice in relation to inquests is already in scope of legal aid, and the Legal Aid Agency has the discretion to waive the eligibility limits if it considers it equitable to do so. However, the legal aid means test review is considering the legal aid means test as a whole, including in relation to legal help for inquests. That review will be published shortly.

New clause 11 would remove the means test for legal aid applications for legal help for bereaved people at inquests. As I said, we have recently announced our intention to amend regulations to remove the means test for applicants for exceptional case funding for legal representation at inquests. That change will also provide non-means-tested legal help in relation to an inquest for which ECF has been granted for legal representation. As was said in relation to legal help specifically, we are also carrying out a review of the legal aid means test as a whole, and that review will be published shortly.

New clause 12 would amend the definition of “family” for the purpose of applications for legal aid at inquests. As I said in response to new clause 10, the Government recognise that this is a difficult time for bereaved families, and have already made a number of changes to make inquests more sympathetic to the needs of bereaved people. However, that does not mean that legal aid is required in all cases. The coroner’s investigation is generally an inquisitorial and fact-finding process. This means that for the vast majority of inquests, legal aid is not necessary. For bereaved families who do need legal help, advice and assistance is already available under the legal aid scheme, which is of course subject to a means and merits test.

Again, as I have already said, for legal representation at an inquest, legal aid may be available under the exceptional case funding scheme where certain criteria are met, and the Government have already committed to removing the means test for those applications. Given the ongoing work that this Government are undertaking to support families at inquests, I urge the hon. Gentleman to withdraw his amendment.

[Andy Slaughter]

I hear what the Minister has said in relation to the amendment and the new clauses. Notwithstanding his comments on amendment 73, it is not our intention to press that amendment to a vote, or indeed to oppose the clause as a whole when we come on to clause stand part. I accept—although it is far from perfect—that there are some caveats built into the text of the clause, which are not built into clauses 37 and 39 in the same way.

As for the legal aid clauses and new clause 12, I hope the Minister will at least see that there is a logic and a consistency to adopting the same definitions as are in the Coroners and Justice Act 2009, and notwithstanding his comments, I hope that the Government might look at this issue again. I hear what he says about legal help: he has made essentially the same point that he made about new clause 10, which is that this is an inquisitorial process and additional lawyers could complicate the matter, so in that sense, the new clause is not necessary. I will not push new clause 11 to a vote—let us see what the Government come up with—but we will wish to vote on new clause 10.

Frankly, the arguments that the Government are repeating in a rather tired way have been completely debunked now. As the Minister has said, we did hear from Mr Rebello, who is a senior coroner, but there are many coroners who do not share Mr Rebello’s view. As I indicated at some length this morning, this is the overwhelming opinion of not just practitioners but practitioner organisations, family organisations and all those who have done these reports for 20 years, and the Government are conceding that in part. This is an area on which the Government have moved, and I respect the fact that they have done so, but if they really believe in equality of arms in these matters, they have to put families at inquests on the same footing as those parties who are fully represented. It still will not be equality of arms. Frankly, in many cases, there will still be a number of different parties reinforcing each other. I have appeared in many inquests of that kind against a family, often a single family, and their lawyer.

--- Later in debate ---

[James Cartlidge]

Each year, around 30,000 inquests are held in England and Wales. Indeed, 32,000 inquests were opened in 2020. A significant number of the cases are non-contentious and those most likely to attend, such as the bereaved family, are content not to attend. Despite that, the coroner still has to hold a hearing, often in an empty courtroom with just a recording device. The clause will enable the coroner to determine when an inquest can be held without a hearing, for example, where there is no practical need or public interest to do so. That would, in turn, free up physical space and resources for inquest cases that do require a hearing.

There will, of course, be cases that genuinely need a full public hearing, and coroners will still be expected to hold these as usual. There will also be cases where the family would like a hearing, and the coroners will be expected to judge each case on merit, working with families sensitively. The Chief Coroner will provide further guidance to coroners to ensure that there is consistency of approach across coroner areas. The clause will reduce the need for unnecessary procedures, bringing efficiency to the coroner’s courts and supporting bereaved families by reducing the need for unnecessary inquest hearings, which add to their distress.

Question put and agreed to.

Clause 38 accordingly ordered to stand part of the Bill.

Clause 39

Use of audio or video links at inquests

[Andy Slaughter]

I beg to move amendment 74, in clause 39, page 51, line 10, at end insert—

“(2B) Coroner rules that provide for the conduct of hearings wholly or partly by way of electronic transmission of sounds or images must not allow the conduct of hearings wholly or partly by sound only.”

The purpose of this amendment is to prevent an inquest from being conducted by telephone or other means which are audio only.

--- Later in debate ---

[James Cartlidge]

The hon. Member for Hammersmith asked for evidence. It is obviously a difficult area. The procedures are new, so having very clear evidence on certain types of remote proceedings—

[Andy Slaughter]

rose—

[James Cartlidge]

I am just responding to one intervention at the moment.

I stand by the point that I made earlier: overall, remote access digitisation enhances access to justice. For many people who are disabled, for older members of society for whom getting around and travel are not easy or straightforward, or for those who live in more remote areas, being able to access the process online will make it more accessible. It is simply about being reasonable. I want to make some progress on the amendments, but I will give way to the hon. Gentleman after making another point.

--- Later in debate ---

[Andy Slaughter]

Earlier, the Minister quoted with approval Mr Rebello’s evidence, which we took at the start of the Committee proceedings. The Minister agreed with him on the issue of representation, which one might think is more of a point to be debated. Mr Rebello is an experienced coroner and his evidence was persuasive on whether it was as acceptable to have people remotely as it was to have them in the room, in terms of not just the individual parties—there are many different parties—but the collective impact. I wonder why the Minister was not persuaded.

[James Cartlidge]

What I hope I have set out is that we are simply introducing flexibility. One should not underestimate the fact that the powers are in the hands of a judicial figure—the coroner is in effect a judge—who in all the provisions has discretion in how such matters operate. I have great faith in the judiciary. One needs to apply common sense. What cannot be done is something that the law does not allow, and we are enabling something to be possible.

Amendment 75 proposes to set out in primary legislation the requirement for the coroners to obtain consent from interested persons before making a decision on whether to conduct an inquest hearing remotely. As I said, coroners are independent judicial office holders and how they decide to conduct an inquest hearing should be a matter for them. In line with other courts and tribunals, the final decision will lie with the judiciary.

It is expected, however, that the rules to govern remote inquest hearings will provide that coroners should seek views from interested persons and take those into consideration as part of their decision making. I assure hon. Members that coroners will continue to act sensitively to ensure that bereaved families’ concerns are considered when making decisions about the investigation, including the pre-inquest and inquest hearings.

Amendment 76 proposes to introduce additional requirements into the clause when a coroner proposes to hold an inquest hearing remotely, including the requirement that the coroner obtains the consent of interested persons. Amendment 77 would require coroners to notify the parties before the intention to hold a hearing remotely.

As I said, the clause enables rules to be made permitting remote hearings to be held in coroner’s courts. Detailed rules will be brought forward to govern the conduct of remote hearings to guide how they will work in practice. As such, I am not convinced the amendments are necessary.

Again, I stress that remote elements of the coroner’s inquests worked well during the pandemic with interested persons and witnesses attending virtually. I assure all colleagues that coroners will continue to work sensitively with bereaved families, acknowledging their concerns and working in their best interests to ensure that justice is seen to be done.

Amendment 78 seeks to ensure that remote hearings are held in a way that is accessible to the public. Clause 39 needs to be read in conjunction with clause 167 of the Police, Crime, Sentencing and Courts Bill which is in the other place. That provides for the remote observation and recording of proceedings by direction of the court in a number of courts, including the coroner’s courts. I understand the concerns of the hon. Member for Hammersmith, but his amendment is not necessary, as clause 167 of that Bill will ensure that justice remains open and accessible to the public regardless of how the hearing is conducted.

In addition, it is expected that the rules to govern remote inquest hearings will provide sufficient guidance to ensure that coroner’s inquest hearings remain accessible to the public. The Chief Coroner will provide additional guidance on any law changes, and we expect coroners to follow that guidance.

Amendment 79 proposes to set out in primary legislation the requirement for the Government to review, and consult with relevant stakeholders on, the potential impact of remote inquest hearings before any changes are introduced. To reassure the hon. Gentleman again, let me say that clause 39 only enables the coroner to hold remote hearings. The Coroners (Inquests) Rules 2013 will need to be revised to set out the detail of how remote hearings will operate in practice, and we will seek stakeholder input, including from the Chief Coroner, coroners and the Ministry of Justice-chaired stakeholder forum to ensure that the rules are appropriate. I hope that I have therefore provided suitable reassurance to the hon. Gentleman and I urge him to withdraw the amendment.

[Andy Slaughter]

rose—

[Sir John Hayes]

I apologise to the hon. Gentleman. What my hon. Friend the Minister has just said is important, because if there is a genuine consultative process of the kind that the hon. Gentleman has emphasised, which I must admit I had not recognised in my earlier remarks, and it involves those groups about which I am particularly passionate and which might be disadvantaged, then, while this legislation enables the things the Minister has described, it will not necessarily mean that they are imposed wholesale. I still think that the hon. Gentleman has done a great service to the Committee by allowing us to have this debate, and it is important that we have done so, but that consultation is critical. Will the Minister give me an absolute assurance that representatives of disabled people and disadvantaged people will be part of this process?

--- Later in debate ---

[Andy Slaughter]

I thought for a moment that the right hon. Member for South Holland and the Deepings was rising to indicate which of the amendments he is going to support, but we will see. They are all good amendments. I will not trouble the Committee by putting them all to the vote, but with all due respect to the Minister I do not think that the case for them has been rebutted.

The failsafe is in amendment 75, which states that the agreement of families must be secured before an inquest is conducted remotely. The Minister said in an earlier discussion that that could be used obstructively in some way, but I think that the chances of that are vanishingly small. I regret to say that there are cases—I may come on to this in the clause stand part debate—where the coroners have not been entirely sympathetic to the wishes of families. We respect their right to run their own courts and they have wide discretion about which evidence is heard, but it is giving all the weaponry to the coroner and perhaps a bit of a brake needs to be left with the family.

I will mention amendment 76, too, because considering the ability of interested persons to deal with the hearing is crucial. I will not push that to a vote and I accept what the Minister has said about these being matters to which he has regard. I hope that they will appear in guidance, because I have concerns about the double whammy of someone not being in a position to articulate their views and being further discriminated against by a remote hearing in which they are unable to take part.

I will press amendment 79 to a vote. The Minister conceded, I think, that there is no evidence here and we are taking a bit of a leap in the dark. It is reasonable that more investigation is needed.

[James Cartlidge]

Has there been—I will double-check with my officials—exhaustive, detailed analysis of the impact of remote hearings on bereaved families? To my knowledge, there has not yet. If that is not correct, I will come back and correct the record. However, I have said how extensive the use of remote technology has been during the pandemic, and I am not aware of a lot of negative feedback from families or vulnerable users who are somehow disadvantaged by it. If that is the case, however, I will be happy to clarify that. All I have heard is that delivering greater use of cloud video technology, particularly in other jurisdictions such as tribunals, has greatly aided the ability to keep justice going in very trying circumstances.

[Andy Slaughter]

I hear what the Minister says. This is not making the best the enemy of the good: we have got through, and Zoom and other methods have been a great help during covid, but most of the Zoom, Teams and other meetings that we have taken part in have been professional meetings and even then, I am afraid, some colleagues—probably myself on some occasions—struggle with the technology. Most of the parties to an inquest will be professional—we made this point in relation to our new clauses—but some people will struggle, and it may not be entirely apparent that they are struggling. That is my point. I pray in aid the comments of the Bar Council. On the whole, it has been reasonably sympathetic to what the Minister is trying to do, but it says of clause 39 that

“it is our belief that this measure should not become law without thorough research, evaluation and consideration of the impact on the administration of justice and justice outcomes.”

I think that must be right. We are not opposing the clause, but before we go ahead and support it, we are asking to have the consent of the parties, including the families, and further evidence. I will not press amendment 74 to a vote, but I will press amendments 75 and 79.

Amendment, by leave, withdrawn.

Amendment proposed: 75, in clause 39, page 51, line 10, at end insert—

“(2C) Coroner rules that provide for the conduct of hearings wholly or partly by way of electronic transmission of sounds or images must provide for all interested persons to have to give their agreement to the conduct of hearings wholly or partly by way of electronic transmission of sounds or images.”—(Andy Slaughter.)

The purpose of this amendment is to ensure the agreement of families is secured before an inquest is conducted remotely.

--- Later in debate ---

[James Cartlidge]

I am grateful to my right hon. Friend. That is an ideal note to conclude on, because this is about striking a balance. I would just add that this measure also complements a provision in the Police, Crime, Sentencing and Courts Bill that, if implemented, would allow the media to access coroners’ court proceedings remotely. I therefore commend clause 39 to the Committee.

[Andy Slaughter]

I know that we want to make some progress, but I will make a few additional comments in response to the Minister, because this is an important clause, and the right hon. Member for South Holland and The Deepings has put his finger on the issue. None of us is against speeding things up, making things more efficient or allowing more options for the ways in which proceedings can be dealt with, but the corollary has to be that we provide protections and avoid unintended consequences that may be harmful to participants and may mean that justice is not done.

The aim of clause 39 is to make provision for pre-inquest reviews and inquest hearings to be conducted wholly or partially remotely, with all parties, including the coroner and jury, participating remotely, but with the jury present in the same place. Currently, the coroner and the jury—if there is one—must be physically present in the courtroom, and the law does not allow fully remote juries. This clause fails to adequately address the needs of bereaved family members; does not provide a guarantee that remote inquest hearings will continue to be in public; and has been introduced with insufficient research and evaluation.

In the criminal justice context, the organisation Justice has piloted fully virtual jury trials. Independent academic analysis concluded that with careful consideration and adaptation, such trials can be fair and may have some benefits over short and straightforward traditional jury trials, such as improved sightlines for jury members. However, while we support the principle of increased use of technology in the form of remote proceedings for certain situations in the justice system, this cannot apply without restriction across the justice system, and must be implemented with caution and with appropriate safeguards.

Let me give an example in which a remote hearing failed to safeguard a family. Chris died after suffering cardiac arrest on 24 March 2019. Chris had been sectioned under the Mental Health Act 1983 and was under the care of Pennine Care NHS Foundation Trust. The inquest into his death took place in April 2021, and was deemed an article 2 inquest and was conducted with a jury. Following that inquest, Chris’s family wrote to the local senior coroner to highlight the challenges they faced due to the remote technology used at the inquest. There were two main issues. First, Chris’s family saw a witness who was giving evidence remotely and representing Pennine Care

“laughing and pulling faces with a colleague”

on their screen. This came just after another member of staff gave evidence concerning the failure to observe Chris properly while he was sleeping. Secondly, the family accidentally saw CCTV footage of Chris’s last hour, which was to be used by another witness. Unsurprisingly, the family found those moments very distressing and wrote to the senior coroner to

“ensure relatives of the deceased are not put through unnecessary additional distress”.

Clause 39 also proposes introducing remote juries to inquest hearings, which is justified on the basis that it would bring coroners’ courts in line with other jurisdictions where it is presently an outlier. However, clause 168 of the Police, Crime, Sentencing and Courts Bill, which has been referred to, would introduce remote juries in criminal trials. That clause is still under consideration in the Lords, and prompted a joint briefing from the Bar Council and the Law Society raising “wide-ranging” concerns that included

“the risk of alienating juries and/or witnesses; ensuring security of proceedings (both in terms of the privacy of the process and individuals, and data privacy); additional expense to the taxpayer; the requirement of new technology and IT systems; and the associated issues arising out of these aspects”.

For families, this brings the additional challenge of them being unable to witness a jury’s reaction to evidence being heard. Lawyers from the Inquest Lawyers Group have spoken of inquests they have sat on where the jury has sat in a separate room to the coroner, watching the hearing via video link. In more than one instance, lawyers have reported seeing members of the jury sleeping and eating without the coroner having any knowledge. That type of situation would be very hard to prevent if the proposals in clause 39 are enacted.

Inquest hearings can have a uniquely distressing impact on bereaved families. The process, which involves hearing details about an individual’s last moments before death, can have a retraumatising effect on families. Clause 39 will make it more difficult for many families to separate the distress of the inquest hearing from their personal lives.

We are also concerned that families engaging in the inquest process remotely will be unable to access in-person support from charities such as the Coroners’ Courts Support Service. In the Justice Committee’s inquiry into the coroners’ service, the Chief Coroner emphasised the critical role played by Coroners’ Courts Support Service volunteers in meeting families and ensuring that they are not by themselves. Justice Committee members picked up on that point and made recommendations to make the service more widely available. The Bill’s provisions, rather than strengthening those services, would roll them back.

Despite the distress, frustration and pain that can be caused by the inquest process, bereaved families go through it to understand the circumstances of their family member’s death, and to bring to light harmful practices with a view to preventing similar deaths in future. I am concerned that remote hearings may disconnect families and key witnesses from that important process, which serves a wider public interest.

We are not against the further introduction of new technology; in some circumstances, such as pre-inquest hearings, it clearly seems appropriate. We have serious reservations about remote hearings for full inquests, but we accept that that can be mitigated. The problem with the way in which the Government have handled the matter in the Bill is that they have not offered those mitigations. They are putting all matters into the hands of the coroner. Of course, there must be judicial discretion, but they need to go further. We hope that the Minister in the other place will table amendments to improve the provisions and mitigate against the possible harmful effects of remote hearings, and perhaps then we will be delighted to support the clause. For present purposes, however, we will vote against clause stand part.

[James Cartlidge]

Very briefly, I believe that the clause adds flexibility. It is important that we have the ability to hold such hearings remotely. As I have said, it joins up with how hearings have been happening in other jurisdictions, particularly in tribunals and so on. If the hon. Gentleman has such concerns, does he believe that we should no longer be holding tribunals or other types of hearing remotely, such as for the family court? They have been of real benefit to this country during the pandemic.

Of course, such things should be done sensibly. Perhaps it is a question whether the glass is half full or half empty in terms of trusting in the discretion of the judiciary. My view is that, in the face of the significant backlog that we have and the need to take measures to deal with it, not introducing the provisions would be a regressive step.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[James Cartlidge]

Eighteen months ago, at the height of the pandemic, the Government introduced the Coronavirus Act 2020, which formed the foundations of our approach to combating the pandemic. The classification of covid-19 as a notifiable disease in England meant that any inquest into a death where the coroner had reason to suspect that the death was caused by covid-19 would have had to take place with a jury. There would have been significant implications for the coronial system, as current legislation requires a coroner to hold a jury inquest where the coroner has reason to suspect that the death was caused by a notifiable disease. With covid-19’s high mortality rate and high infection spread rate, there were concerns about the resource implications for coroner workloads and coroner services if coroners were required to hold jury inquests into such deaths.

Section 30 of the 2020 Act was therefore implemented to disapply the requirement that coroners conduct an inquest with a jury where the cause of death was suspected to be covid-19. Anecdotally, we have heard from coroners that section 30 has ensured that stretched coroner services were not overwhelmed when they could have been under considerable pressure. Clause 40 of the Bill therefore ensures continuity after the 2020 Act “sunsets” in March 2022.

It is important to stress, however, that coroners will still be able to conduct an inquest with a jury where covid-19 is suspected as the cause of death where they think that there is a good enough reason to do so. And this clause does not change the legislation concerning other notifiable diseases; coroners are still required to hold an inquest with a jury where another notifiable disease is suspected to be the cause of death.

This clause is intended to support the coronial system as it looks to post-pandemic recovery. Coroners’ courts are moving ahead with scheduling outstanding inquests, which have built up over the pandemic in some places. This provision removes the added pressure of scheduling inquests with a jury where that would be seen as an unnecessary process. Should there be future outbreaks of covid-19 with high mortality rates, this measure will ensure that the coronial system is not overwhelmed with jury inquest cases.

Finally, I note that this is a temporary measure, which will be reviewed and extended after two years by the Lord Chancellor via delegated power. I urge that clause 40 stand part of the Bill.

[Andy Slaughter]

I will take my lead from the right hon. Member for South Holland and The Deepings on this matter. I think that this is a good example of a practical measure and there are sufficient safeguards to allow jury inquests to continue where necessary, so we do not intend to oppose it. Clearly, one would not wish to restrict unduly, and certainly not against the interests of justice, the opportunity for jury inquests, but I think that the way in which the clause is set out and the stages that are gone through ensure that that will be possible and that there is unlikely to be any miscarriage on those grounds.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Clause 41

Phased transition to new coroner areas

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

Clause 41 is intended to support the objective of the Government and, more recently, the Chief Coroner to merge coroner areas where the opportunity arises in order to improve consistency of coroner provision and standardise practice. In essence, clause 41 will enable coroner areas within a local authority to be merged by order of the Lord Chancellor where the new coroner area would not be the entire local authority. Before 2012, there were 110 coroner areas in England and Wales. Through coroner area mergers, we have brought that number down to 85, and our long-term objective with the Chief Coroner is to reduce it further to around 75 coroner areas. It is intended that this clause will make it easier for coroner areas to merge.

The clause also meets one of the Justice Committee’s recommendations in its inquiry report on the coroner service. The Committee acknowledges that reducing the number of coronial areas has helped to increase consistency across the coroner service. Implementing the clause will ensure that merger opportunities can continue to be progressed. I urge that clause 41 stand part of the Bill.

[Andy Slaughter]

There is a very helpful example on page 50 of the explanatory notes as to how this would work, for anybody who has any concerns about it. It seems to be administratively sensible and tidy. I cannot do any better than to raise the concerns of a member of the Bar Council who said that this is all well and good provided it does not result in fewer coroners, deputy coroners and deputy assistant coroners covering greater areas. Can the Minister give us that assurance? We have no other points to make or objections to the clause.

[James Cartlidge]

To be completely transparent, the purpose of the clause is to allow some very specific mergers to happen. If implemented, there will be an immediate benefit in allowing Kent County Council to progress the merger of its current four areas into one coroner area. Kent is currently unable to achieve this because current legislation does not allow two coroner areas to be merged if the merged area will be less than the area of a local authority. The clause has a very practical justification. We do not see any significant impact in the way the hon. Gentleman describes.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clause 42

Abolition of local justice areas

--- Later in debate ---

[James Cartlidge]

This clause seeks, as part of a new structure for providing court buildings in the City of London, to remove an obligation in statute requiring the City of London Corporation to provide county court capacity at its current location in the Mayor’s and City of London court. Her Majesty’s Courts and Tribunals Service and the City of London Corporation have reached an agreement on a scheme where the ageing Mayor’s and City of London court, and the City of London magistrates court in clause 44, will be replaced by a new, purpose-built 18-room courthouse on Fleet Street. The new courthouse will significantly improve the quality of court provision within the square mile and strengthen our justice system. The new court is scheduled to be operational in 2026; in the meantime, the existing courts will continue to operate and business will not finally transfer until the new court is fully operational. The existing duty to provide the Mayor’s and City of London court would be removed and replaced by obligations under a contractual lease arrangement. I hope that that reassures colleagues, particularly my right hon. Friend the Member for South Holland and The Deepings, that we are bringing forward new court rooms.

[Andy Slaughter]

I used to attend Mayor’s and City quite often and, in previous years, the City of London magistrates court. They were extremely well appointed and rather luxurious by the standards of most of the courts of state. I hope that will be replicated in the new court.

[James Cartlidge]

I am happy to say these will be state-of-the-art courtrooms with very high eco ratings, which I am sure the hon. Gentleman will agree is extremely important. They will bring on stream new additional Crown court rooms, which is particularly important in the context of the backlog.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clause 44

The City of London Magistrates’ Court: removal of duty to provide premises

Question proposed, That the clause stand part of the Bill.

Judicial Review and Courts Bill (Sixth sitting)

Debate between James Cartlidge and Andy Slaughter

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[Alex Cunningham]

I am glad the Minister is pleased. The amendment would mandate the Secretary of State to commission and lay before Parliament an independent review of the potential impact of the AOCSSP on defendants and the criminal justice system, its efficacy and operational issues.

I have spoken at some length about the numerous concerns raised about the procedure, and sought the Minister’s reassurance on many of them. The most appropriate form of reassurance would be an independent report into the impact of the procedure. The procedure marks quite a significant shift in the way we handle criminal cases and would establish the principle for all summary and non-imprisonable offences to be automated through an online plea, conviction and penalty website. The Opposition recognise the need to explore how we can deploy technology in the criminal justice system, but we do not agree that it can be done without a robust evidence base, especially when we are dealing with changes that potentially pose a threat to defendants’ rights, access to justice and the principle of open justice.

As JUSTICE has noted, the evidence base for the procedure is poor and none of the reports that the Government refer to in the Bill documents—Sir Robin Auld’s 2001 “Review of the Criminal Courts”, Sir Brian Leveson’s 2015 “Review of Efficiency in Criminal Proceedings” and the Government’s own 2016 consultation, “Transforming our Justice System”—explores the real world consequences and risks inherent in the procedure. Furthermore, the 2016 Green Paper, in which the Government first proposed the introduction of an online conviction system, stated that the system should be using three offences before any decision was taken to make it permanent. It noted:

“We propose to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme, which would be: Railway fare evasion; Tram fare evasion; Possession of unlicensed rod and line. If this initial phase is successful, we plan to bring other offences, particularly certain road traffic offences, into the system in future.”

[Andy Slaughter (Hammersmith) (Lab)]

It does seem to be a bit of a feature of this Bill. When we were dealing with clause 2, we heard that the abolition of the Cart judicial review was to be a template for other offences, and the same is happening here. Does my hon. Friend agree with me that it is slippery slope? [Interruption.] I hear the Minister snorting from a sedentary position—

[James Cartlidge]

Chortling.

--- Later in debate ---

[James Cartlidge]

It is a good question. I respect the hon. Lady’s background before she became an MP and she speaks with a lot of experience. These are non-recordable offences, such as not being in possession of a valid ticket on a train or tram or having an unlicensed fishing rod. They are all non-recordable, so they will not result in a criminal record.

I will amend what I said earlier to my hon. Friend the Member for Sleaford and North Hykeham. When I said “if a person is innocent”, I meant to say “if they intend to plead not guilty.” It is a semantic point but important to get right.

[Andy Slaughter]

I have a genuine question. If the provision is extended to other offences, is it the Government’s intention that any offences dealt with will be non-recordable in that way?

My hon. Friend the Member for Stockton North made some really thoughtful points, which the Minister is now addressing. What I am getting at is that the court appearance is a sort of framing event, and that can work both ways. First, it avoids trivialising the offence: it concentrates on it, is public and has the effect of exhibiting the offence to the wider world. Secondly, it acts as a way of thinking about where the offence is going—there may be legal advice, the court itself may be able to advise and the process of going to court may alter the defendant’s disposition. Has the Minister thought about all that and about the type of offences to which the provision might apply in future?

Judicial Review and Courts Bill (Fifth sitting)

Debate between James Cartlidge and Andy Slaughter

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

It is a great pleasure to serve under your chairmanship, Mr Rosindell. I wish everyone a good morning and look forward to another thorough day’s examination of this important Bill.

Amendments 43 and 44 seek to reduce the scope of the ouster clause by introducing numerous exemptions. Clause 2 is carefully constructed and consistent, and identifies the kinds of errors the court could make and deals with each separately. The upper tribunal will not be reviewable on errors of law but will be where it has made a true jurisdictional error or where there is evidence of bad faith or a fundamental breach of the principles of natural justice. That is so we can deal with the inefficiency in the current system while providing adequate safeguards.

The exemptions outlined in the amendment would completely undermine the Government’s objective of tackling those inefficiencies, as a large number of cases would continue to proceed to the High Court on grounds of error of law without any good reason. I understand that some of the circumstances outlined in the amendment are particularly difficult for the claimant. However, we must trust the upper tribunal to take appropriate and proper decisions on all permission-to-appeal applications. Where there are particular sensitivities, we can be confident that the upper tribunal will have considered those in reaching its decision.

The very low percentage of Cart judicial reviews that actually result in a successful outcome for the claimant—as we have discussed, the figure is about 3.4%—illustrates precisely that point. There is no good reason to treat the sorts of cases that come before the upper tribunal—the majority of which are immigration cases—differently from any other sort of dispute that comes before our courts and tribunals by granting them a third bite at the permission-to-appeal cherry, as we have famously described it, which is what the Cart JR system currently does. The amendments would undermine the consistency of the treatment of appeal decisions by the upper tribunal, making it the final court in some cases but not others, simply because of certain factors relating to the claimant rather than to the nature of the error concerned. Our approach is consistent and justified, and properly empowers the upper tribunal to get on with its important business.

Amendment 42 aims to widen the exception to the ouster clause, which relates to bad faith and fundamental breach of natural justice. It proposes including decisions made by the first-tier tribunal as well as the decision of the upper tribunal. I consider the amendment unnecessary. I am sure hon. Members will agree that judges of the upper tribunal are entirely capable of identifying the sort of blatant and serious errors that constitute bad faith or a fundamental breach of natural justice.

The upper tribunal can be trusted to uphold the rule of law, and the drafting in the Bill sets out with sufficient clarity the exceptional conditions in which the upper tribunal should be subject to judicial review—namely, where it has breached the fundamental principles of natural justice or acted in bad faith. In any case, one would imagine that the upper tribunal knowingly upholding bad faith on the part of the first-tier tribunal would act in breach of the fundamental principles of natural justice. Therefore, including a further provision in the Bill outlining a situation that, in my view, is extremely unlikely to occur, is unnecessary. I urge the hon. Member for Hammersmith to withdraw the amendment.

[Andy Slaughter (Hammersmith) (Lab)]

It is a pleasure to see you in the Chair again, Mr Rosindell, for another sitting to consider this important Bill. I will respond briefly.

The Minister correctly said that the aim of the amendments is to reduce the scope of the ouster clause. That is exactly right, because we do not believe there are adequate safeguards. Without giving away the plot, we will come shortly to the clause stand part debate and our preferred option is to leave the clause out altogether. The amendments are our attempt to say that if the ouster clause were appropriate in the new circumstances, which we do not concede, it should not have such limited exemptions.

The Minister said that the amendment would defeat the Government’s purpose by increasing the number of cases that would still be subject to judicial review. It is my submission that that is not the right way to look at it. It is the justice of the case and the consequences for claimants that we should be looking at. To repeat what I said last Thursday, those consequences are often matters of life and death and severe. In addition, the use of judicial review in Cart cases is already heavily constrained. We have focused on the relatively small amount of money that Cart judicial reviews cost—relative in terms of overall judicial budgets—this would be a part of that sum.

The Government should not dismiss this issue. At the very least, they should think about the extent of the ouster clause. That is the purpose of this debate and I do not believe they have thought sufficiently about it. We are, however, coming to the clause stand part debate, in which members of the Committee will be able to express ourselves rather more clearly and fully. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.

Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.

The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.

Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that

“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]

He agreed that it is time to end this type of review because of its inefficiencies.

The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said that

“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.

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[Andy Slaughter]

The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.

A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.

[James Cartlidge]

That is a terrible comparison.

[Andy Slaughter]

It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.

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[James Cartlidge]

It is a pleasure to wind up this stand part debate, which has been passionate. We have had some excellent speeches and interventions from both sides, and I will refer briefly to a few of them. The hon. Member for Lewisham East said that we are talking about human beings. We have heard cases that all of us would be sympathetic to, but that is not the point. Those using all the other parts of the legal system, where it is absolutely standard to have “two bites at the cherry”, are human beings too.

If there is a planning case, for example, where some houses are approved and your parish disagrees, it can seek judicial review through the High Court. If that is denied, it can potentially—although it is unlikely—try the Court of Appeal. That is it: two bites. That is the standard procedure, and it will still apply for cases of immigration and asylum, including all the people we have heard. As to what would happen to those who were successful, that is where we have to make a judgment on proportionality and accept that there would potentially be some cases that would have been found to be unlawful. However, as my hon. Friend the Member for Ipswich said in an excellent speech, where do you draw the line?

The Labour Front-Bench spokesman, the hon. Member for Hammersmith, quoted Professor Feldman in aid, but it was Professor Feldman himself who admitted that ultimately when we look at it—he took a very balanced view—this was a disproportionate use of resource, where 96.6% of cases are proving to be unsuccessful. When the rate of failure is so high, I wonder why legal representatives are advising their clients to go down that path. It calls into question whether it is, in effect, another route of appeal, and a chance to extend the case further, because, as I said earlier, it can be in the system for up to three months.

[Andy Slaughter]

I think the Minister makes my point for me. I deliberately quoted Professor Feldman because, yes, he did see some merit in the proposals of Cart, but he went on to warn about the wider dangers—the series of quotes that I gave was on this point, which I am sure the Minister will address—of opening the door to a much wider and further restriction through the use of ouster in future.

On the cherry point, the argument I put forward was that an unlawful decision of the first-tier tribunal is not being picked up by the upper tribunal—hence the illegality and hence the deportation, or whatever it is, happening contrary to the law—and is being picked up through Cart. It is the first bite at the cherry. It is correcting an error at first instance, which has not been picked up by the upper tribunal.

[James Cartlidge]

The hon. Gentleman has been asked repeatedly whether he thinks, on that basis, that we should extend the right to three bites at the cherry to all other areas of law. What would be the cost? How much more resource would that take up? If he does not think that, he must be saying to all our constituents that immigration and asylum are exceptional, and overwhelmingly that immigration cases should have that additional right. I think our constituents would disagree. It is right for the Government to exercise judgment on matters of the use of resources.

[James Cartlidge]

I am grateful to my right hon. Friend. I want to correct one point about what happened under previous Labour Governments. It is quite extraordinary that the hon. Member for Hammersmith talks about this tightly drafted ouster clause somehow being a precursor to further ouster clauses that could go much wider. As I said on Second Reading, the Minister responsible for Labour’s Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the right hon. Member for Tottenham (Mr Lammy), admitted in this sort of Committee sitting that they were trying to bring in the mother of all ouster clauses, so widely was it drafted. To be clear, it was not the same system. It was not the upper tribunal. There was a single-tier immigration and asylum tribunal. Judicial review was in that sense the second tier. They were going to remove it even where they did not have the upper tribunal in place. That is an extraordinary situation and it underlines that what we are restoring is a situation wholly consistent with the European convention on human rights.

[Andy Slaughter]

rose—

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[James Cartlidge]

I will take one more intervention from the Opposition, and then another from my right hon. Friend.

[Andy Slaughter]

I am not going to speak for my right hon. Friend the Member for Tottenham, who is better able to speak for himself. Let us imagine that the Minister was correct, and that that was an error. Why have the Government not learned from that? Why are they coming here to make the same mistake again, in the same terms?

[James Cartlidge]

The hon. Gentleman does not want to answer, because he knows he cannot defend it. He cannot answer the point. If he thinks it right that in order to find these few cases of legal merit, someone should have three bites at the cherry, why does he not apply that to all other areas of law? He either thinks it should be applied, in which case, clearly, we would be gumming up the courts with a much greater burden of pressure, which would make clearing the backlog completely impossible; or he thinks that immigration and asylum is an exception. You cannot have it both ways.

[Andy Slaughter]

rose—

[James Cartlidge]

I am not giving way to the hon. Gentleman again. I give way to my right hon. Friend.

Oral Answers to Questions

Debate between James Cartlidge and Andy Slaughter

Tuesday 9th November 2021 Commons Chamber

[James Cartlidge]

We have been debating these matters at length. The Bill is a very good one. It strengthens judicial review in relation to quashing orders with the new remedies. Far from what the hon. Lady said, those new remedies—for example, being able to suspend a quashing order—will bring great benefit to our constituents and support better public administration.

[Andy Slaughter (Hammersmith) (Lab)]

The Bill has a whole chapter on coroners yet entirely neglects the key issue of giving bereaved families a fair hearing at inquests. Victims’ families have no right to legal aid, even when many state institutions are represented at public expense. At one inquest, 18 public bodies were represented but families had to fight to be heard. Will the Minister commit, now, to non-means-tested funding for bereaved families when the state is represented, and table amendments to the Bill to achieve that?

[James Cartlidge]

I am pleased to confirm to the House that we are currently drafting the measures that will ensure that we remove the means test on exceptional case funding for such matters. Furthermore, I can confirm that the changes should be implemented early next year.

Judicial Review and Courts Bill (Fourth sitting)

Debate between James Cartlidge and Andy Slaughter

Committee stage
Thursday 4th November 2021 Public Bill Committees

[James Cartlidge]

We will debate the presumption in more detail, because there are a number of amendments to it in the later groups. With the greatest respect for the hon. Lady, I would simply say that that is an erroneous interpretation of the presumption. First, the Bill does bring in those new remedies, irrespective of the presumption, but the presumption is there. It does not force the judge to use them; yes, it highlights the fact that they are there and that we would expect them to be used were it appropriate, but what it ensures is that, whether they are used or not, the reasons and the thinking are written down. In a nutshell, this is about encouraging and expediting the accumulation of jurisprudence, which is incredibly important in a common-law system.

I understand the concern that such orders should not be used to prevent claimants from getting just outcomes. That very point was made on Second Reading by the Chair of the Justice Committee. However, I submit that the clause as drafted already protects against that. The list of factors for the court to consider in using the new remedies, which is set out in subsection (8), includes at paragraph (c) a requirement for the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

In other words, it must consider the interests of the person or persons who has brought the judicial review.

In addition, the presumption at subsection (9) requires the court to use the new modifications for quashing orders only where it would offer “adequate redress”. Furthermore, subsection (2) allows the court to impose conditions on any remedy it gives, which is another way that the court can tailor any remedy to ensure it properly serves the interests of justice.

I therefore submit that the ability to limit or remove retrospective effect does have a clear purpose and that there are already sufficient safeguards in the provisions before the Committee to ensure the interests of the claimant are fairly balanced against the interests of good administration. The clause gives the courts the necessary flexibility to tailor its remedies appropriately.

Amendment 35 seeks to remove the subsection that states:

“Provision included in a quashing order under subsection (1) may be made subject to conditions”.

However, the whole point is that the ability to set conditions is very important, so that the court can strike the right balance in how it gives a remedy. For example, to avoid detriment to a claimant or those in the same situation, the court might specify that the defendant cannot take any new action to enforce the impugned decision, but is nevertheless afforded time to amend or correct it by virtue of a suspended quashing order. Removing the court’s ability to set such conditions would not be in the interests of justice or flexibility.

The final two amendments in the group, amendments 40 and 41, were originally connected to amendment 39, which the hon. Member for Hammersmith has withdrawn, and now relate to amendment 12. They are consequential amendments that remove elements of the clause that seek to provide further clarity in respect of the ability to limit or remove the retrospective effect of quashing orders. I agree with the hon. Gentleman that if we were to accept amendment 12, those amendments would logically follow. However, for the reasons I have explained, we do not accept the rationale of amendment 12 and, as such, we also oppose amendments 40 and 41. I urge him to withdraw his amendment.

[Andy Slaughter (Hammersmith) (Lab)]

Welcome back to the afternoon sitting, Sir Mark. I can reply fairly briefly to this short debate.

The hon. Member for Dudley North said that a power grab by the Government was not what was happening in this Bill. However, whatever language is used, the Bill does alter the balance of power. In that sense, it is a movement of power from the courts to the legislature, for reasons I will explain more under the next group of amendments. He said that it adds powers to the judge’s armoury. Technically that may be true, but if the net effect in reality is to create uncertainty and fewer protections for claimants, that is not a welcome development.

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[Andy Slaughter]

My hon. Friend makes a very good point, and makes it better than I did. When one starts down this tinkering route—as the Government have in the Bill—and starts trying to nudge judges one way, putting in lists of qualifications and conditions with matters that have to be taken into account, altering the time period over which orders will take place, there are bound to be consequences. We have already said that there is likely to be uncertainty and satellite litigation, but genuine harm could also be caused in this way. I agree, as well, about red tape. It is all very well to try to cut through in that way—and it sounds very good when Ministers say it at the Dispatch Box—but unfortunately it leads to tragedies such as Grenfell Tower. Without the protection given by legislation and regulation on issues such as health and safety, the public are put at risk.

Even where a case has been brought and a decision has been found unlawful, the Bill stands to threaten the ability of people to bring collateral challenges. Proposed new section 29A(5) states that when a prospective-only or suspended quashing order has been made, the unlawful act is

“to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect”,

either retrospectively or until the quashing comes into effect. That situation, in which the court pretends that an unlawful decision was valid for a period of time, would appear to inhibit the ability of the person to rely on its unlawfulness in other proceedings. In other words, a person could be arrested under a regulation ruled unlawful by a court, but they would not be able to use that in their defence. The IRAL report quotes Professor David Feldman, whom we heard from, on the “intuitive revulsion” felt against that state of affairs, and concludes:

“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”

Clause 1 fails to protect the ability of individuals to rely on the finding of unlawfulness of a measure in other contexts—for example, as a defence to criminal proceedings. A further subsection should be included to protect collateral challenge and third-party rights and defences where a remedy under proposed new section 29A(1) is ordered. The possibility of collateral challenges should be expressly protected by proposed new section 29A(5A), which is what amendment 15 seeks to do by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.

That is really the only point I need to make on this group of amendments; of course, the other amendments are consequential on amendment 15. I hope that the Minister has taken the point. I ask him, in responding, to say first whether he supports amendment 15; if he cannot, as I say, we will press it to a vote. Would he then accept that this is an issue that needs to be dealt with? It clearly is. It may be unintended, but it is nevertheless a consequence of what the Government have set out to achieve in clause 1. Before the Bill comes back, it really needs to be dealt with.

[James Cartlidge]

The amendment aims to ensure that illegality of decisions can be relied upon when using the new remedies. I am also responding to amendments 16, 17 and 18, as they are dependent on the adding of proposed new section 29A(5A) and would require courts to consider proposed new section 29A(5A) when considering the effect on validity.

This new addition seeks to address concerns regarding claimants relying on the illegality of rulings as a defence in criminal proceedings or prejudicing their access to compensation. I would argue that we have already factored in such considerations and given the court ability to make special provision in such a case.

I draw the Committee’s attention to clause 1(1), in which proposed new section 29A(8) lists a number of factors that the court should have regard to when considering the use of our new measures. These importantly cover the interests or expectations of persons who would benefit from the quashing. One would presume that the ability to raise a defence would be one such benefit. Fundamentally, proposed new section 29A(8)(f) states,

“any other matter that appears to the court to be relevant”,

ensuring that such factors can be covered in any eventuality

I would argue that the factors listed, or any that the court feels adequate, would be used in good faith to ensure that the rule of law is upheld. Having considered those factors, the court can use its powers by virtue of subsection (2) to add any conditions to its order, for instance that the defendant does not take any further action to enforce the unlawful decision, such as bringing forward criminal proceedings. With the powers in the Bill the court can make clear, to its satisfaction, the precise effects of the order that it makes. That ensures that there is greater flexibility for the courts to arrive at a positive outcome for all those affected.

The list of factors and the ability to add conditions already allow what the hon. Member for Hammersmith is suggesting. Therefore, the amendment would make no useful change to the Bill. I urge him to withdraw it.

[Andy Slaughter]

The Minister has made my point for me in drawing attention to proposed new section 29A(8) in clause 1, which does not deal with this point other than under the non-exhaustive provision—

“any other matter that appears to the court to be relevant.”

It is too serious and too specific to be left to be casually dealt with in that way. Therefore, I wish to press amendment 15 to a vote.

I would ask the Minister to go back and look at this provision, and whether we need further, specific qualification of the kind that I have outlined that could be introduced at a later stage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Andy Slaughter]

Will the Minister give way?

[James Cartlidge]

For one last wafer-thin intervention.

[Andy Slaughter]

I have been very restrained with the Minister. He puts his case in a moderate and reasonable way: he believes that the clause will improve not just the armoury of the courts, but their performance. Why does he think that, in bringing judicial review claims, almost every claimant, organisation and practitioner does not think that, but thinks it will hamper them? Would it not be quite perverse if they were saying that without actually believing it from their own experience?

[James Cartlidge]

I am grateful to the hon. Gentleman. He obviously was not listening to the same experts as I was on Tuesday, when we heard some strong support for the remedies. There is recognition from the experts that the remedies give more flexibility. I have explained the sorts of circumstances in which they may be used, but if they are not appropriate, they will not be used. However, we would at least understand the reasoning. I do not want to put the horse before the Cart, which we are about to come to. [Laughter.] It is a very important matter on which I am sure colleagues want to speak.

Question put, That the clause stand part of the Bill.

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[Andy Slaughter]

I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.

[James Cartlidge]

Back to the Cart. [Laughter.]

[Andy Slaughter]

Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.

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[Andy Slaughter]

I will in a moment. Under clause 2, that crucial and focused review will be lost, and with it the potential for fundamental injustices to be prevented. I am coming on to talk briefly about amendments 43, 42 and 44, but I will give way.

[James Cartlidge]

The hon. Gentleman used the phrase “faulty statistical reasoning”. In 2004, when the current shadow Justice Secretary, the right hon. Member for Tottenham (Mr Lammy), was a Minister, he tried to bring forward a similar measure. Can the hon. Member for Hammersmith remind us of the percentage reasoning used to justify that measure at the time?

[Andy Slaughter]

Along with “bites of the cherry”, I cannot comment on the shadow Justice Secretary’s activities before I was elected to the House. It might be approaching lèse-majesté for me to intrude on that, particularly given that he dealt with it effectively on Second Reading.

[James Cartlidge]

I am happy to help the hon. Gentleman.

[Andy Slaughter]

I would never refuse an intervention.

[James Cartlidge]

In a Bill Committee, the statistic that the right hon. Member for Tottenham, as Constitutional Affairs Minister, used to justify getting rid of Cart JR was 3.6%—an incredibly similar statistic, which suggests that there is some merit in that figure.

[Andy Slaughter]

We have heard every figure from 0.22% up to 9.6%, and some of the experts made the case for it being substantially above 3%. I am making a separate case, however, which is why I wanted to read into the record some of those case summaries of complex cases. They indicate: first, that they are compelling cases; secondly, that there are a significant number, even if they are a minority; and thirdly, that the figures that we are talking about—I wish we could get more accurate figures; perhaps the Minister could go away and help us with that—are likely to be substantially above 3.6%. I know that the Government have moved only that far at the moment, but perhaps they can be persuaded to move a little further.

I fear that I will not finish today, but hon. Members will be pleased to hear that I am near finishing. I will say a few words on what are essentially probing amendments 43, 42 and 44. As I said at the beginning, they are our way of making the best fist of improving clause 2—they are not our finest hour.

We would like to understand why it is proposed to exclude the supervisory jurisdiction of the High Court to consider upper tribunal decisions to refuse permission to appeal, where it is arguable that the statutory appellate process is tainted by bad faith or fundamental breach of natural justice, unless that question is one of bad faith or breach of natural justice by an act of the upper tribunal itself. Clause 2 permits very limited exceptions to the ouster of the High Court’s supervisory jurisdiction over the statutory tribunal appeals system.

Proposed new section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 sets out the limited exceptions. Proposed new section 11A(4)(c) provides for an exception where a question arises as to whether

“the Upper Tribunal is acting or has acted…in bad faith, or…in fundamental breach of the principles of natural justice.”

That restricts the jurisdiction of the High Court when the bad faith or a breach of natural justice is on the part of the upper tribunal in refusing permission to appeal. If, however, the statutory tribunal appellate process has been otherwise tainted by bad faith or a fundamental breach of natural justice, whether before the upper tribunal or in the first-tier tribunal, the High Court’s jurisdiction would continue to be excluded. That might, for example, be on the part of the tribunal below or on the part of a party to the appeal.

Any appeal that is tainted by bad faith or a fundamental breach of natural justice would therefore not fulfil Parliament’s purpose in establishing a statutory appellate tribunal. Therefore, in the interests of both justice and parliamentary sovereignty, any appeal tainted by either of those factors should not be excluded from the supervisory jurisdiction of the High Court. The amendment could expand the current exception in clause 2 to ensure that it applies to any bad faith or fundamental breach of natural justice.

I pause to catch my breath before I go on to amendments 43 and 44, just in case the Chair was about to interrupt me. If not, I will begin. It is unclear what is proposed by clause 2 having regard to the existing and pending limitations of the tribunal system in securing access to justice for appellants before it, particularly in relation to the function of that system as guarantor of the safety and fairness of administrative decisions. The Bill could be amended to provide a further list of exceptions to the ousting of the High Court’s jurisdiction proposed by clause 2. I propose an amendment that gives examples of circumstances in which there must be special concern about the capacity of the first-tier tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal.