Nationality and Borders Bill

Lord Horam Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Horam (Con)]

My Lords, I will follow on from what the noble Baroness and my noble friend Lord Kirkhope said. I will say a little bit on the Australian experience, which is the only relevant extant experience that we have at the moment.

What happened in Australia was that, in 2001, the Liberal Party of Australia and the National Party of Australia, the equivalent of our Conservative Party, introduced offshoring as a policy. I have no knowledge of how it worked at that point—I just do not have any information—but it carried on until 2008, when the Australian Labor Party was elected in a general election and desisted from offshoring. After that, there was a huge increase in the number of boats coming into north Australia, up to about 50,000 a year, and, as a consequence of that, the Labor Government did a U-turn and reintroduced offshoring. Unfortunately, this was too late in terms of political consequences: it lost the general election, and, in 2013, a new Liberal and National Government came in, reintroducing offshoring and beefing it up, with the army and navy playing a role in all of that. That is the history of it.

It was then highly successful: the offshoring completely stopped the human traffickers’ business—they had no more scope to bring people over because people simply did not believe that they would get into Australia—and the whole thing was a success, so much so that the opposition Labor spokesman agreed that, essentially, the boats had been stopped by the offshoring techniques. Thereafter, the Australian Labor Party changed its policy, and the policy now has cross-party support in Australia—both the Liberal Party and the Australian Labor Party support it—and boats no longer go across from Indonesia to Australia. The policy succeeded.

As my noble friend said, it is perfectly true that there are some issues in Nauru and Papua New Guinea—essentially residual issues arising from previous years—which have been difficult to resolve. I am sure that we would all want those to be resolved quickly and properly for humanitarian reasons.

However, clearly the Government are looking at this. Of course, there is no guarantee at all that such a policy, which was successful in Australia, would be successful here—one cannot pretend that that is necessarily likely to happen. The fact is that, although the situation is the same, in that people are crossing by sea to England and the UK as they were to Australia, the geography and the politics are different, and it is quite possible that it would not work in British circumstances. That is the truth of the matter.

None the less, it would be a dereliction of duty if the British Government did not try to look at this and examine whether it can work. The first thing that they have to do is, as the Australians did, pass the relevant legislation that enables them to put this into practice and see whether it does, in fact, work. That is where we are now—we have not done anything about it, and it is not in place. It will not be in place until some time after we have passed this legislation—

[Baroness Stroud (Con)]

Could my noble friend outline his thinking on, for instance, the proximity of Nauru to Australia and whether that is not more the equivalent of saying that France or another European nation would be the location of the offshoring, rather than, say, Rwanda, which is on completely the other side of the world? Could my noble friend perhaps acknowledge the differences and unpack that for us a little?

[Lord Horam (Con)]

Yes, I do acknowledge the differences, which is why I said that there is no guarantee at all that, even if this is tried, it will work in British circumstances. All I am saying is that it worked in Australian circumstances, the Government are clearly interested in this and, as I say, it would be a dereliction of duty if they did not put this among their options and pass the legislation that enabled us to try this out. That is where we are now.

I point out that, after the success of this policy in Australia, the Australian Government were enabled to expand the legal routes for asylum seekers to go to that country because it ceased to be controversial: immigration was less controversial as a consequence of the anti-boat policy being successful. The fact is that, as I have said before in these debates, if the public do not buy into the policy, you will have problems in persuading them to have more immigration. If they buy into it because they can see that you are controlling your borders, they have a more relaxed attitude to immigration and accept higher levels of it because they can see that they are in control of both the amount and the type of immigration coming in.

Therefore, there is a prize at the end of this for those who genuinely want to have more immigration, frankly, than we have at the moment, and if you can seem to be in control. What worries people is if you are not in control—if they can see clearly that people are behaving illegally getting here, jumping the queue and all the rest of it. In view of what the Whips on both sides have said, I do not want to go on any longer, but we ought to consider this in a rational and sensible way, as a clear option that any responsible Government of whatever kind should pursue; and I point out that, in Australia, for example, it does have all-party support.

[Baroness Lister of Burtersett (Lab)]

My Lords, we have obviously been reading different things because everything that I have read and heard about the policy in Australia suggests that it is far from successful, and certainly not for asylum seekers themselves.

[Lord Horam (Con)]

If the noble Baroness reads the evidence given by the Australian high commissioner to the House of Commons—evidence-taking on a section of this Bill—she will find that much of what I have said is corroborated there.

[Baroness Lister of Burtersett (Lab)]

I tend to give more credence to people on the ground, but there it is.

I share concerns that have already been raised about potential health and human rights implications and the general dehumanising nature of a power that allows the British Government, in the words of the UNHCR,

“to externalise its obligations towards refugees and asylum seekers to other countries with only minimal human rights safeguards”.

No doubt, we are talking about poorer countries on the other side of the world to which asylum seekers will be moved like cattle, as the noble Baroness, Lady Jones, said.

I want to raise a few questions; some have been covered so I will not repeat them but build on them. First, with regard to children, who a number of noble Lords have mentioned, in the Commons the Minister assured Caroline Nokes, a former Immigration Minister, that unaccompanied children would not be transferred for offshore processing. When she asked about accompanied children, and about what would happen to a child who turned 18 during the process of applying for asylum, answer came there none. I hope that there will be an answer to those questions today.

Can the Minister also say what would happen to a child whose age is disputed? When we reach that group of amendments—probably around midnight, so it will be great scrutiny—we will hear of the widespread fears among medical and social work professionals and children’s organisations that Part 4 of the Bill will lead to many more children being wrongly assessed as adults. If so, I fear that many unaccompanied children could be transferred because it is not believed that they are, in fact, children. I would welcome the Minister’s thoughts on that. Can she assure us that no young person will be transferred while the age-assessment process is going on?

Secondly, building on what the right reverend Prelate and the noble Baroness, Lady Stroud, said, the UNHCR observes that the Bill

“is silent on what, if any, legal obligations the United Kingdom would consider itself to have”

towards asylum seekers once their asylum claims have been dealt with. It expresses concern that there is nothing in the Bill that confines the application of the changes to extraterritorial processing, which is the stated purpose in the Explanatory Notes.

Detention Action warns that, even if a third country’s authorities recognised the asylum seeker as a refugee, the Bill provides no power for the UK to re-admit them or grant them any form of leave. Can the Minister say whether this interpretation is correct? If it is not, can she assure us on the record that those who are deemed to qualify for refugee status will be readmitted to the UK—that is, the country from which they sought refugee protection—and explain under what legal power in the Bill they would be so readmitted? If Detention Action’s interpretation is correct, this is not simply about offshore processing, which is a euphemism, but, even more shockingly, it is about the Government wiping their hands of all responsibility for those who qualify for refugee protection via a claim for asylum—not short-term offshore processing but long-term deportation. If so, the case for Clause 28 and Schedule 3 not standing part of the Bill is that much stronger.

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I am pleased to support Amendment 115, in the name of the noble Lord, Lord Dubs, which I have co-signed. Of course, it aims to provide a safe route for unaccompanied children from countries in Europe and broadly reproduces what we all know as the Dubs amendment to the Immigration Act 2016. There have been warm words, deservedly, about the role and record of the noble Lord, Lord Dubs; what better way to put that into something concrete than for the Government to accept Amendment 115?

I support all the amendments in this group, but I will just speak in support of Amendment 116, in the name of a noble quartet of Conservative Peers, which would provide for “at least 10,000” refugees to be resettled annually. The noble Lord, Lord Kerr, has discussed the ins and outs of that figure, but it is better than 1,000 a year, which we hear was the low achievement last year. This figure happens to be Liberal Democrat policy, so I very much agree that it is a moderate and sensible amendment. As I say, I support all of the other amendments in the group.

[Lord Horam (Con)]

My Lords, I am not sure that I should support a Liberal Democrat policy this evening; none the less, I agree with what the noble Lord, Lord Kerr, said about the importance of targets. I am sure that one of the reasons that local authorities are reluctant to accept more people is the uncertainty that they have at the moment. They genuinely have a shortage but, inevitably, they hold back when they do not know exactly how many are expected.

I have long argued for targets in this area; I think they are an important part of it precisely because you need sensible planning, frankly, and this could be a way forward. Whatever the numbers may be, we ought to have a proper debate each year on refugees, asylum seekers and immigration as a whole, in which the Government’s plans are set out and we can all make a contribution, in the Commons as well as here, and decide what should be the targets for the following year. This would give everyone, including local authorities, some confidence and certainty about what they are expected to do.

I am afraid I do not think that that will actually reduce the numbers of people coming across the channel—I am sorry to disagree with the noble Lord, Lord Kerr, on this point—for the reasons that I spelled out previously. Demand is so great that people would still try to cross the channel, even if we expanded the number, for certainty, of people coming across under safe schemes. None the less, the idea of having transparency and target setting is very valuable.

[The Lord Bishop of Durham]

I will try to edit my speech as I go. I support Amendment 118, to which I was pleased to add my name. We all agree that we do not want unsafe journeys, and there is no silver bullet: the situation is complex. If a deterrent was really the answer, securitising the Eurotunnel and the ferry ports has not worked; it has just created even more dangerous routes. So we must have more safe and legal routes.

The major reason I support the idea of a humanitarian visa is that it is a further safe and legal route. It also addresses the issue of people coming from the countries where there are smaller numbers who face persecution and so on, for whom bespoke schemes are never going to be created. Last year, only 93 people arrived from Iraq, five from Yemen, none from Iran and 36 from Sudan. That is all those who were resettled last year. The focus became so heavy last year on Afghanistan and Hong Kong, through the BNO scheme, that all other refugees appeared to be forgotten, so we need this kind of visa. I hope the Minister will not pick holes in the way the amendment is worded because the point is that this kind of visa needs to be looked at.

I also speak in favour of Amendment 116—it is very nice to speak with the noble Lord, Lord Horam, on one occasion. During the Syrian crisis of 2015, a target was set of 20,000 and it helped galvanise everybody with a vision of what could be done. It helped local authorities to understand what kind of numbers they might expect and so on. We also saw through that process the creation of the community sponsorship scheme, so we came up with a new thing through a targeted number. Ten thousand is a number widely supported, as the noble Baroness, Lady Meacher, noted, by huge numbers of refugee organisations because the UNHCR has identified that it is, roughly speaking, our fair share across the world. It is not a number plucked out of thin air but from looking at our fair share across the globe. I hope that we will hear positively the idea that it can happily include the Afghan citizens resettlement scheme. I shall stop there because we need to keep moving.

Nationality and Borders Bill

Lord Horam Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

My contention is that what the Government are seeking to do is unworkable in practice and wrong in principle. That is why we have these amendments. I hope that the Government will think again, because we cannot be the only country that tears up the 1951 convention like this and says that it does not matter. It matters a great deal.

[Lord Horam (Con)]

My Lords, I agree with the noble Lord, Lord Dubs, that there has to be some shared responsibility in Europe. In particular, his point about Greece, Italy and Spain was well made. They have had to bear the brunt of the inflow of asylum seekers to a very difficult extent, and I understand their problems. The noble Lord was also right that, whatever other solutions may be forthcoming on this very difficult issue, we will eventually have to have some agreement with the French. I am rather hopeful that, with the departure of the noble Lord, Lord Frost, we may have a better chance of reaching agreement—I say that with no malice to the noble Lord, Lord Frost, who I am sure did a very difficult job his way, but none the less, the fact that he has gone seems to me to be rather good news from the point of view of having a rather more diplomatic approach to France. I am glad that the Foreign Office in particular may now be in charge of that. I am sure that the noble Lord, Lord Kerr, will agree that it is probably better for the Foreign Office to have more say in this matter than under the previous arrangements.

What I am concerned about reflects what the Chief Whip said earlier on. Clauses 14 and 15 seem to do no more than bring into British law what we already had when we were in the European Union—that is all they do—using the Dublin regulations and the Spanish protocol. This is nothing more than a transfer. We have all the rights that we enjoyed when we were members of the European Union to take account of particular circumstances and difficulties which people may have in getting evidence and so forth. All these fairly extensive amendments are already taken account of by our existing rights, so I do not see how we can spend very long on these clauses, given that they really do no more than a transfer job.

[Baroness Ludford (LD)]

My Lords, I do not think that the noble Lord is right about EU arrangements. I remember as an MEP fighting hard on the inadmissibility provisions in EU directives. On the Dublin arrangements, my understanding is that the UNHCR is satisfied that those arrangements were compliant with the refugee convention. I contend that Clause 15 is not, hence I have put my name to some of the amendments in this group. My noble friend will propose that Clause 15 be removed altogether, as it fails to recognise the need to share asylum responsibilities with other countries in order for the international system to work effectively, but at least some changes to the clause are necessary, and so I have co-signed the amendments suggested by the JCHR, tabled in the name of the noble Lord, Lord Dubs.

Amendments 69, 70, 71 and 75 all seek to restrict and improve the operation of the scheme proposed in Clause 15. I also support Amendment 68, and convey the apologies of my noble friend Lord Oates, who has a conflict with other business. Clause 15 is about proposals whereby the UK would attempt to persuade some other country to take responsibility for the asylum applicant if it considered that there was a connection to that state, broadly defined, or even if there was no connection at all.

Amendment 69 seeks to ensure that the definition of “safe third State” means it affords the protection and rights to which the person is entitled, so there is no real risk of them experiencing persecution, a violation of their human rights or refoulement, and that there is access to fair and efficient asylum procedures and refugee convention rights. Amendment 70 seeks to ensure that any removal should be only to a state with which the person has a connection. Amendment 71 requires that, unless formal and legal binding return arrangements are in place with the state in question—such as was the case with Dublin, which is why the UNHCR gave it its blessing—and removal takes place within a reasonable period. Absent those conditions, there must be no declaration of inadmissibility and the claim must be considered in the UK. Amendment 75 removes and rejects the suggestion that the UK can remove a claimant to a country in which the UK Government think it would have been reasonable for them to have made a claim, even if they had never visited that country.

As I said, even if these four amendments were adopted, Clause 15 would still be flawed. It would create yet greater delays, backlogs and costs in the asylum system. As we keep saying, the Home Office says the system is broken yet it wants to shoot itself in the foot by having ever-more complicated and long-winded procedures. It would also create greater anxieties for claimants and disruption to the international system. Therefore, Clause 15 must be at least amended, if not removed.

Criminal Justice and Courts Bill

Lord Horam Excerpts

Wednesday 21st January 2015 Lords Chamber

Every time this Lord Chancellor addresses judicial review, he contradicts that essential guidance. I am very pleased that this House has performed its role in requiring the House of Commons and the Lord Chancellor to think again, and in securing acceptable compromises that will enable judicial review to continue to perform its valuable and essential functions.

[Lord Horam (Con)]

I would like to comment on the remarks of the noble Lord, Lord Pannick. He said that this has been something of a saga. It has indeed been a saga, albeit, as I think he would agree, a highly intelligent and rationally argued one on all sides. The reason it has been a saga is that there is a real issue here: on the one hand we value the role of judicial review, which, as he rightly says, is a protection for the citizen against illegal and wrong actions by the Government, and it is important that that is kept in place, but on the other hand, unfortunately, in recent years an abuse of judicial review has crept in in many areas. We have heard at some length the sort of examples where that has taken place. To give one example, the noble Lord, Lord Adonis, had tremendous difficulties with the introduction of the academy programme when he was Minister for Education in the previous Government, because of the judicial reviews that were brought in against that particular idea, and it took him some years for that all to be sorted out.

At the moment these problems are concerned not so much with education or issues of that kind but with development. Many schemes up and down the country to provide more houses, roads, commercial opportunities, schools and hospitals are held up by judicial reviews that are usually—indeed, very often—almost without merit and are brought forward on tiny issues of procedure. These judicial reviews are used as a weapon of delay, which is something that any Government, Labour, Conservative or coalition, should be concerned about.

There has been an issue of getting the right balance between on the one hand protecting the legitimate and longstanding use of judicial review, and on the other avoiding this abuse of judicial review, particularly using it as a weapon of delay for infrastructure development. This is an important issue, so important that not only are the Government concerned about it but the Opposition are using their day tomorrow to talk about the need for more infrastructure development. It is a common cause for all Governments, frankly, that we get infrastructure development—I am sorry that that is such an ugly phrase, but the House knows what I mean—going with some speed, because we are falling behind. We are 24th in the world league for infrastructure development, whereas we are fifth in the economic league, so we are well behind where we should be in terms of building roads, houses and all the rest of it, and we need to move that on. The truth is that judicial review has sometimes been used in a very unfortunate way to delay that sort of development.

My noble friend has had the difficult task of getting some sort of balance into this debate, and that it why it has taken some time for this House and the other House to reach a conclusion. A conclusion has, I hope, now been reached, and that reflects good will on all sides of the House. I hope that what has been achieved will be of value and do some good. When we pass legislation in the House, we unfortunately never know exactly what effect it will have, but I hope this will have some effect and I therefore pray that the effort that has gone into it on all sides of the House and at the other end of the corridor will be of good value.

[Lord Woolf]

I also share the hope expressed by the noble Lord, Lord Horam, that what has been achieved will be worth while. However, I am bound to say that my view originally was that these proposals to restrict the court’s powers in relation to judicial review were unnecessary and misplaced. On the points made by the noble Lord, Lord Horam, I should point out that these amendments would not have assisted in any way whatever. What has assisted is the fact that the courts, aware that there are problems in some areas of judicial review, and of their own motion, put in place a specialist way of dealing with the questions of development to which the noble Lord referred. That is quite independent of these amendments. None the less, the changes that have been achieved to the original proposals enable me, like the noble Lord, Lord Pannick, to accept that this can be accepted, although with reluctance.

Criminal Justice and Courts Bill

Lord Horam Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, when I intervened on the Minister and asked for the evidence or indications to underpin the need for this amendment, he, as the House heard, declined to give the same. It was important to add evidence or indications. I perfectly accept that a lot of the matters with which we are dealing in this amendment cannot be susceptible to simple adding or subtracting.

I want to make one point. I believe that we live in a time of democratic crisis. The public are voting for UKIP and, to some extent, they voted in droves for Scottish independence because there is a real breakdown of confidence in the main parties. We all know that there is a breakdown of trust in the great institutions of our state, in business and in us. We cannot brush aside the expenses tragedy of a few years back as if it is all forgotten and done with. It is not. I went to Clacton and canvassed. My goodness, it is not. There is a breakdown in trust. Of all the times to bring in a provision as contained in Clause 64, this is absolutely not the time.

Surely it is a simple point that the one thing that controls and contains any Government, however strong or however wrong, is the instrument of judicial review. I do not think that it is justifiable at all to reduce the extent and power of judicial review to any extent. That is the rule of law. If the proposal were to be brought forward, it surely could be brought forward with any semblance of decency only if the evidence for the need for it—the essentiality of it—was abundantly plain. We all know that it is absolutely as miles from that as it could be.

I am completely persuaded that there is only one thing to do tonight. I regret voting against a heavy whip but sometimes we all know that we have to do that, which is what this House is here for. I say again, we cannot take the step proposed by the Government to reduce the extent and power of judicial review.

[Lord Horam (Con)]

My Lords, perhaps I may add an element of balance to this debate, although balance may not be exactly the right word since I probably am the only person who is going to speak in support of my noble friend the Minister in order that the debate may be not wholly, completely 100% unbalanced but a little bit balanced. I want to explain to noble Lords what worries us. I am not a lawyer so I cannot comment on some of the technical points that have been made. I am worried that there is considerable abuse of judicial review.

My noble friend Lord Deben—who was kind enough to say on a previous occasion that we have never disagreed on anything even when we were in different parties, which is largely true—said, in relation to the example brought forward at the beginning of the Minister’s speech, that it was not very convincing. I remind the House of the example which is, I think, shocking and a defining example of how judicial review can be abused. That point is made by the noble Lord, Lord Adonis, in his book, Education, Education, Education. He wrote:

“As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees”.

That is an example of some years ago.

My understanding is that that is happening today not only in education but in rail. For example, the Government have already had to spend £460,000 in outside legal fees to defend the judicial reviews against HS2. I am aware of judicial reviews in regard to roads. Development was rather scoffed at by the noble Lord, Lord Beecham, but in many instances it means housing projects and we need more housing in this country.

[Lord Cormack]

Is my noble friend really saying that the legitimate environmental concerns of people who have misgivings about HS2 should be overridden regardless? Surely it is entirely legitimate for those who have real interests to be able to pursue those interests by legal means.

[Lord Horam]

Indeed, but the point about judicial review is that it is a technical discussion about the process of law-making. Have the Government behaved illegally? Have they consulted properly? That is what judicial review is about. If you want to have an argument about HS2 it should take place in the Chamber quite openly. There are quite clearly profound differences of opinion about the process of HS2 but it is not judicial review that should be encompassing that. There should be an open debate about the merits and demerits of a particular project.

[Lord Carlile of Berriew]

Is the noble Lord really suggesting that the whole planning appeals procedure should be abandoned for government schemes? That is the clear implication behind what he said. As he said there are—I forget the adjective he used—many abuses anyway of judicial review, would he like to give us perhaps three examples of cases that have been an abuse of the process so we can have an evidence-based discussion.

[Lord Horam]

I am personally aware from my experience in this House and as the former Member of Parliament for Orpington of cases affecting Travellers and the green belt. My constituents were concerned about Travellers camping on green belt land. Ultimately, Bromley Council, which was the council in question—

[Lord Carlile of Berriew]

I want to challenge the noble Lord. Is he saying in this House that Travellers do not have the right to challenge the Government by judicial review? If so, we might as well throw away all our democratic values.

[Lord Horam]

No. What I am saying is that the judicial reviews raised by Travellers in Bromley were ultimately found to be completely meritless. They were meritless because Bromley Council, which has more Travellers than any other council in the country, had plans on how to deal with Traveller sites. Therefore, it was an argument about the nature of the problem of dealing with Travellers. It was not something that could be dealt with by judicial review. That is my point. The abuse of judicial review arises from the fact that questions of merit are being subject to judicial review simply because lobbyists and others are using judicial review as a route to object to proposals they do not like.

If I can complete the list of examples, it was not only green belt and Travellers—

[Lord Deben]

I have taken advantage of now being able to look up online in this House the suggestions as to why these cases are important. The first one is a case study on residential development in which the judge decided that there were two grounds of law which ought to be met. They were discussed and both were dismissed. Is my noble friend really saying that because it was inconvenient those two particularities of law should not be looked at? There is a second case put before us about a free school which is quite complicated but there were people who had a real issue. They are the only two cases to explain the argument that there have been more and more cases of judicial review. Frankly, there have been more and more cases of the Government interfering in the detailed arrangements of life and therefore it is not surprising that the number of judicial review cases has increased.

[Lord Horam]

I cannot comment on a churlish Government interfering more and more in the minutiae of daily life. That is something the Government would have to answer. None the less, the fact remains that the use of judicial review, where people are really arguing about the merits of a project, case or change in the NHS, in education or whatever, is fairly extensive. Indeed, I am told by friends and acquaintances in the lobbying industry that if you go to a lobbying company and say, “We are worried about this project and we want to object to it.”, one of the things it will tell you is that if you can afford an expensive lawyer it will find a technical means through judicial review of objecting to the proposal. That is a standard part of the package, I am told. It is hearsay, I fully accept that, but I am told that it is a standard part of the lobbying system in this country. They are the sort of examples I am aware of. It is not particularly statistical evidence but in this field that is rather hard to come by. None the less, it gives a flavour of what is happening out there in the ordinary world.

[Lord Berkeley of Knighton (CB)]

I want to make one simple point. Even if the noble Lord is right that there are some cases of abuse—there are in every sphere of life including the police or indeed Parliament itself—is it not worth paying that price for the man in the street or the small community to feel that they have some way of redress against large institutions, government and big business? Many people feel it is their only way of making their point. We should not deprive them of it.

[Lord Horam]

That is precisely why, as I understand it, my noble friend is introducing in a later amendment a de minimis clause precisely designed to exempt small communities. When there is a project and neighbours perhaps contribute £100 or £150 each to object to it, that would be entirely legitimate and I would be wholly in favour of it. That would not be stopped by this precisely because the Government have recognised that point and in a later amendment are introducing a de minimis clause.

[Lord Woolf]

That is not correct on the first amendment. There is no qualification being introduced by the Government.

--- Later in debate ---

[Lord Horam]

I totally agree. I said on a later clause. Here, we are dealing with a situation where the actual result would be highly unlikely to make any difference. The noble Lord’s point would not occur because obviously they would hope to win their case. Here we are dealing with cases where it would be highly unlikely to make any difference at all and therefore the point made by the noble and learned Lord, Lord Woolf, does not arise.

There is abuse which I think is doing the rule of law and judicial review damage. That is a real problem. How does this Bill affect that? There is a suite of measures here to deal with the treatment of interveners, financial transparency and lowering the bar slightly in meritless cases where it would make no difference to the eventual result. That is a complex series of measures and we do not really know—I do not suppose the Government know entirely—what effect they will have but clearly it is an attempt to remedy abuse. Remedying abuse in this case would serve the purpose of government. It would certainly help judicial review because it would diminish the impression that people have, rightly or wrongly, that it can be used and abused in the way I have described and is happening up and down the country. You could argue that it would not really detract from judicial review but in many ways would improve its performance. I say to my two Conservative colleagues that one aspect of being a Conservative is that very often you want to improve things for the sake of keeping them as they are. It is a classic Conservative position. I would not regard it in any way un-Conservative to be asking to improve these matters rather than defending the status quo, warts and all.

I think there is a serious problem here. The Government are addressing it. Noble Lords may disagree with the way they are addressing it. I think that the Government need some understanding of where they are coming from. In response to the views in the other place, they have listened and changed their position; not here, I agree, but in later amendments. I wholly agree that the discussion in the other place was truncated and in many respects very unsatisfactory, as has been pointed out. None the less, between the two Houses, we are beginning to get to a more rational and sensible position that acknowledges that there are problems and tries its best to find a way through without damaging judicial review.

[Lord Marks of Henley-on-Thames]

The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.

With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.

I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.

The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.

Legal Aid

Lord Horam Excerpts

Thursday 4th December 2014 Lords Chamber

[Lord Clinton-Davis (Lab)]

My Lords—

[Lord Horam (Con)]

My Lords—

[Noble Lords]

Cross Bench! Low!

--- Later in debate ---

[The Lord Privy Seal (Baroness Stowell of Beeston) (Con)]

My Lords, we still have time. Order—I am standing at the Dispatch Box. We have not heard from the Conservative Benches on this Question. My noble friend Lord Horam is due to speak next, and I know that the House is keen to hear also from the noble and learned Lord, Lord Scott.

[Lord Horam]

My Lords, would it not be better if more lawyers in the legal aid field followed the example of Michael Mansfield QC, who closed his chambers but has reopened a new set of chambers on a lower cost base? Would the lawyers not be better advised to pursue that route, which many others in the public and private sectors have had to do at great cost over the last few years? We could then get a decent service at less cost to the taxpayers within the remit of what the public can afford.

[Lord Faulks]

It is important to emphasise that nothing will change under the criminal legal aid provisions. Everyone who is accused of a crime is entitled to legal aid. I agree with the noble Lord that the way in which criminal lawyers practise, as was reflected in the report by Sir Bill Jeffrey, will mean a certain agility on their part to make sure that they can continue to provide their very high standard in a more economic way.

Criminal Justice and Courts Bill

Lord Horam Excerpts

Monday 27th October 2014 Lords Chamber

All of that will be made more difficult if the Bill passes unamended.

[Lord Horam (Con)]

My Lords, the noble Lord, Lord Pannick, said in his introduction to this group of amendments that he could see no good reason why the Government have brought in these changes. However, he will recall that these changes in this Bill, and in the Infrastructure Bill, were first mentioned by the Prime Minister in his speech to the CBI in 2013. That was the genesis of this group. The noble Lord is nodding, so I think I am right.

The reason for that is that the Government are concerned, as the Minister has said on a number of occasions, about the fact that we have fallen behind as a nation on infrastructure. I am not making a party point; it happened under the Labour Government and the coalition Government as well, which means that, frankly, we have too few trains to deal with commuters, too many jams on the roads, too few houses, too few schools in the right place, et cetera. Now is the perfect time to give a kick-start to infrastructure. This is why Christine Lagarde. the chief executive of the International Monetary Fund, is pleading with Governments around the world to give more attention to infrastructure spending in their economies. Larry Summers, the ex-US Treasury head has said that at the moment infrastructure spending on housing, trains, or whatever is virtually a free lunch because interest rates are so low.

This is the situation that we face and which the Government are addressing. Therefore, they brought forward the Infrastructure Bill, which we are considering in another part of the House, and these clauses to this Bill. The reason is that judicial review has and is causing delay to many projects up and down the country. I will not go into the details that were advanced before the Recess. My noble friend has outlined some of the examples and I will not weary the House with them again. The examples of delay are obvious. It is also inhibiting the decision-making in government bodies. James Morris, the Member of Parliament for Halesowen and Rowley Regis, who before becoming a Member of Parliament was the chief executive of Localis, the local authority think tank, made the point that judicial review has now entered the bloodstream of decision-making in local authorities and other government bodies to the extent that when a decision is made they have to know whether it will be judicially reviewed and have to hire a barrister to find out the implications of all that. That is slowing down the decision-making in local authorities when we are urging them simultaneously to get a move on with lots of projects up and down the country. Indeed, I think that the Chancellor of the Exchequer is in the north of England at the moment urging local authorities to do more there.

Judicial review is also undoubtedly abused. My noble and learned friend Lord Mackay of Clashfern made the point in our earlier debates that it is very often used as a blocking device. It is meant to be about the process but very often the people who use judicial review are not concerned with the process; they are using it merely as a means to stop a particular development.

Lastly, judicial review is costly. There have been arguments about exactly how much it has increased in quantum over the past few years, and if you take out the immigration cases I can see that there has been an increase, but it is certainly not that much. None the less, as was made plain once again at Question Time today from the opposition Benches, the deficit has proven difficult to control and we are spending far more money than we are raising from taxation. This is an area where public expenditure has increased, and it has not received the cuts and restraint that other areas in this field have.

The professional interests here—the lawyers and so forth—have objected to the Government’s measures. There can be no objection to their objections; I fully understand where they are coming from, and it is very reasonable that the Government’s argument should be tested fully as to why they are using this particular technique to try to improve infrastructure in this country. The professional interests have used a number of arguments. The first is that there is no reason for this measure, but I think we have now demonstrated that there is clearly a need for further help with infrastructure and to clear away some of the roadblocks from it.

It is understandable that they would be concerned about human rights and the rule of law. We are discussing a clause that would make no difference, or would be highly unlikely to do so, to any end result from a judicial review. It is very difficult to argue that there is a significant change or a significant diminution to human rights if the end product of any particular judicial review would make no difference to the reality of the situation.

Even if that were the case, as my noble friend Lord Marks said at an earlier stage, we should trust the judges. If, let us say, the quantum of judicial review were 100 and it came down as a result of this Bill to 80, I would trust the judges to make the appropriate judgments about what was important and what was not—which cases merited discussion and which did not. That is their role; they are clearly very experienced at it and they have a good reputation, and I see no reason why that should not carry on.

The noble Lord, Lord Pannick, said again today that the measures would not work and would actually slow things down. The Minister gave a detailed rebuttal of that at an earlier stage before the recess—he set out various points on 28 July at col. 1462 of Hansard—and I will not go into that again. However, the truth is rather different. I would make a general point here: no Government of any shape or kind can always predict exactly what the consequences of any measures are. All those who have been Ministers know that you take a suite of measures and apply them, and some will work while some will not and some will work better than others. That is the nature of government; you do not always know what will work. Therefore, for the noble Lord to say that these measures will not work is stretching credibility. It is not a sustainable argument to say in advance what will work and what will not.

I also think, although obviously I am not a lawyer, that it is very unlikely that the judges will make things work in such way that they are inefficient. We know that there is a long trail of meritless cases and that about only 20% of cases get through to the final stage so there is a lot of unmerited work there, and surely that can be conducted more efficiently. It seems to me, looking at it as an economist, not as a lawyer, that there is a pressing need to ensure that this process does not, as many people are saying, inhibit decision-making in the public body. It does not, it seems to me, have an implication of a serious kind for human rights or the rule of law. As the Prime Minister said in his speech to the CBI, when the conditions are so right, it is necessary that we get a move on with infrastructure building in a significant way as soon as possible. It has coalition support. The noble Lord, Lord Beecham, made a plea to the Liberal Democrats; but I point out to him that at the other end of the Palace the Bill has the support of the Liberal Democrats. It is a coalition Bill, not just a Conservative Bill, and the coalition has supported it thoroughly.

We should look at this extremely carefully and consider whether this relatively small adjustment to judicial review—which is valued, and will continue—is not the right thing to do in the present circumstances and for the future of our country. It is in the public, and also the national, interest.

Criminal Justice and Courts Bill

Lord Horam Excerpts

Monday 28th July 2014 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I hope your Lordships will forgive me if, like other noble Lords, I preface what I say about the amendments in this group with a few general remarks about the proposals in the Bill for the reform of judicial review. In his Second Reading speech, the Minister described judicial review as,

“one of the most important means by which government and other public bodies can be held legally accountable for their decisions and actions”.—[Official Report, 30/6/14; cols. 1541.]

As Frances Gibb, the legal editor of the Times, reported in today’s edition, he stressed that the Government regarded judicial review as,

“terribly important and we are not trying to get rid of it”.

If that is right, we should have little difficulty, as a result of these debates, in persuading the Government to accept amendments to the proposals and to the Bill to ensure that judicial review is not threatened, as I and many other noble Lords believe that currently it is.

I suggest that the Government ought to respect the following six principles. First, judicial review exists for the purpose of enabling the citizen to hold the Executive to account. Secondly, of its nature, judicial review is a public law remedy. It follows that there is often, although not always, a significant public interest in ensuring that a judicial review case is heard and determined over and above the private interests of the citizen or citizens who bring the application.

Thirdly, judicial review cases, of their nature, attract support from numbers of concerned citizens and organisations—sometimes campaigning organisations—with an entirely legitimate interest in the issues involved. Fourthly—perhaps this is not a principle but part of the factual background—judicial review inevitably is often unpopular with government. It is therefore important that Parliament and the courts should be astute to ensure that it is not stifled by unduly restrictive procedures or rules. The noble and learned Lord, Lord Woolf, used the word “sensitive”; I suggest that is an entirely apt description of the requirement.

Fifthly, because financial gain is often not the primary purpose of judicial review cases, it is important that they can be brought without undue expense and without unacceptable financial risk for those who bring them, often out of public concern.

I believe that the sixth principle can be expressed very simply. It is this: trust the judges. Because, constitutionally, judicial review exists for the courts to hold the Executive to account, the best way of ensuring the robustness of that review procedure, and of gaining and maintaining public confidence in the procedure, is for the judges and not the Executive to be trusted to administer it.

I turn to Clause 64, which, as your Lordships have heard, seeks to ensure that any judicial review proceedings that can be classed as academic must fail. The test the clause seeks to apply is whether an unlawful decision by an arm of the Executive has, in fact, led to a “substantially different” outcome for the applicant from that which a lawfully reached decision would have produced. If it is “highly likely”—I repeat the criticism of that phrase—that the unlawful conduct has not made such a difference, the Bill proposes that leave to apply for judicial review must not be given. If leave is given and it turns out that the case is academic in the sense I mentioned, relief must be refused.

I accept that there may be purely academic cases that should not proceed to a hearing, even where it can be established that no part of the Executive has acted unlawfully—but, as the noble and learned Lord, Lord Woolf, pointed out, the courts already have a discretion to refuse permission or relief in such a case. However, I know of no convincing evidence that in practice a significant number of cases is, or has been, brought in which it can fairly be said that the unlawful decision-making at issue must have made no difference to the outcome for the applicant.

However, the real issue here is whether the fact that a case turns out to be academic in that sense should inevitably lead to its being dismissed. I suggest that there will often be a public interest in having the conduct of the decision-maker examined and, if necessary, overruled if the decision made turns out to have been unlawfully made—even where it may be said to have made no difference.

My noble friend Lord Carlile mentioned the question of a lack of consultation where the repeat exercise, when consultation is properly carried out, may lead to the same result. However, to condemn the lack of consultation and to refuse relief in spite of it is, I suggest, entirely wrong. There is also the question of cases where points of law need clarification or where points of procedure or fact need establishing, and need establishing in the public interest, even where a decision might have made no difference.

Therefore, the amendments in my name and that of my noble friend Lord Carlile seek to make the refusal of relief in a case that turns out to be academic discretionary rather than mandatory and to add an extra condition for the refusal of relief. Relief, we submit, should be refused only if an application is both academic in the sense proposed in the Bill and such that the public interest or the overriding objective of dealing with a case justly does not require that it be determined. Our amendments would apply those tests both at the permission stage and at the relief stage in the High Court and in the Upper Tribunal.

I am not among those who hold the view that Parliament should never legislate on the subject of judicial review. It is the right of Parliament in our democracy to do so, and in that I differ slightly perhaps from the arguments put forward by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. However, I suggest, along with him, that we should be extremely careful before restricting by legislation the right of the courts to intervene in unlawful decision-making by organs of government where the court considers it appropriate to do so.

I can add only that the way in which judicial review has developed over the past few decades has demonstrated the very considerable respect for the breadth of discretion by executive decision-makers. It would be appropriate for the Government now to show similar respect for the need for discretion to be exercised by the judges.

[Lord Horam (Con)]

My Lords—

[Lord Davies of Stamford (Lab)]

With great respect, I think that it may be our turn.

[Lord Horam]

I do not think that anyone on this side has spoken yet.

Everyone who has spoken so far has been a lawyer, with the exception of the noble Baroness, Lady Lister. I am not a lawyer; I am an economist, but perhaps I introduce a rather separate vein of thinking into this debate, which is extremely interesting and very important for the conduct of government.

The issue that concerns me as an economist and as a previous government Minister is delay. Almost all judicial review cases involve considerable delay. Indeed, the noble Baroness, Lady Lister, rightly and very fairly mentioned the report of the Joint Committee on Human Rights which went into the whole business of judicial review. In that case, the Government’s response indicated several instances where there had been great delay as a consequence of judicial review cases. I will not go through a long list, as that would weary the Committee, but I shall give some examples. A development of 360 homes in Carmarthenshire was delayed by 18 months. A development in east London which would have created 500 jobs was delayed by 15 months. The expansion of Bristol Airport was delayed. Very often, in the judicial review in question, the case was found to have no merit whatever, but there was still delay.