Judicial Review and Courts Bill (Fourth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter]

This third and final group of amendments deals with one specific point that causes us concern, but it is a matter on which I can be relatively brief. I give notice that, subject to what the Minister has to say, we will seek a vote on amendment 15, which is the substantive amendment.

Proposed new section 29A(5) provides that

“Where…an impugned act is upheld”—

either until the quashing takes effect in respect of a suspended quashing order, or retrospectively in respect of an prospective-only quashing order—

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

We have significant concerns about the impact of that provision on collateral challenge, which this group of amendments would address.

Ordinarily, where a court has found a measure unlawful, even if it has not been quashed, it is possible to rely on that finding of unlawfulness in other proceedings—that is called “collateral challenge”. A person who has had to pay a tax under unlawful regulations, for example, would normally be able to bring a claim against HMRC to be refunded the money. However, new section 29A(5) requires an unlawful measure to be treated as lawful. That would preclude relying on the unlawfulness of a measure in other proceedings. That raises the possibility of people being charged with a criminal offence under unlawfully made delegated legislation, for example, but not being able to raise as a defence the fact that the legislation was subsequently found to be unlawful. As IRAL recognised, that position would leave the law in a “radically defective state”. A further subsection should be included to protect collateral challenge and third- party rights and defences where a remedy under new section 29A(1) is ordered.

New section 29A(5) states:

“Where...an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

Imagine if one of the statutory instruments issued by the Health Secretary during the coronavirus crisis, which created imprisonable criminal offences, were declared illegal by a court. If a court granted one of the new remedies, this subsection would make it as though that imprisonment were always legal. A person could therefore not argue as a defence in the magistrates or Crown court that the statutory instrument was invalid, because this subsection requires a judge to pretend that it was valid.

As IRAL noted in paragraph 3.66 of its report:

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

We agree and believe that collateral challenges should be expressly preserved in the Bill.

[Alex Cunningham (Stockton North) (Lab)]

Successive Tory-Lib Dem coalition and Tory Governments have made much of wanting to do away with red tape and simplify the law, but we have seen quite the opposite in practice. Does my hon. Friend agree that the legislation is yet another example of that? The sentences that he has just voiced are perhaps the best illustration of it. There will be all sorts of consequences to these particular measures. They are actually making things more complicated, less clear, and will provoke further litigation in time.

[Andy Slaughter]

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

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

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

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

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

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

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

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[Alex Cunningham]

I am glad my hon. Friend is going to get on to costs. In the evidence session earlier this week, the Minister spoke about having the privilege of attending the Lord Chancellor’s swearing in. He said:

“One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time”.––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 30, Q32.]

Should cash get in the way of justice, as it is here?

[Andy Slaughter]

Everything has a cost—it is a question of whether it is a reasonable cost. Unfortunately, we have seen the justice system of this country and every aspect of the budget of the Ministry of Justice cut more than any other Department in the last few years. Even the much heralded uplifts over the next few years will take us not much further than restoring half of the money that has been cut. I think it sits rather ill in the Government’s mouth to start talking about money, having done so much damage.

There is not an infinite amount of money, although the Government seem to discover various money trees around the place, and it is a legitimate factor to consider. What I am going on to look at is whether, in the case of Cart, the cost is a justifiable cost, either because of the remedy it provides or per se.

As I have said, Cart judicial reviews are used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights. It is usually used in asylum and human rights cases, in which the stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.

In most cases, it is true that these are asylum and human rights cases, but not all of them are. One of our witnesses—Dr Morgan, perhaps—mentioned that Cart itself was not an asylum and immigration case. It would be wrong to categorise Cart judicial reviews as being for asylum and human rights cases. There are others as well.

Clause 2 would severely restrict Cart judicial review. The Government have not made the case for removing this vital safeguard against serious errors in the tribunal system in cases of the utmost importance. With this clause, the Bill would set a precedent for removing certain cases or areas from the scope of judicial review.

The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and the separation of powers. There is simply no evidence that judicial review is currently so prejudicial to good administration that it needs to be significantly restricted, and there was no conclusion to that effect in the Government-sponsored independent review. That is wholly unsurprising. That Governments find judicial review at times to be inconvenient is no justification for attempting to avoid judicial scrutiny, in this or other areas. It is particularly concerning in this specific instance.

The Bill will largely extinguish the power of the High Court to oversee decisions of the upper tribunal relating to permission to appeal first-tier tribunal decisions. This will affect all four chambers of the upper tribunal, and individuals will no longer be able to apply to the High Court. The removal of this safeguard is likely to impact some of the most vulnerable people in the system, taking away their protection from errors made by public authorities. These include refusals of asylum and, where human rights are engaged, decisions to deport someone, including where that person may have lived in this country for much, most or even all of their life.

It is important to understand that removing the normal supervision of the High Court in this area is particularly problematic given the existing constraints in the asylum and immigration system for the tribunal, and in the context of the Nationality and Borders Bill, which threatens to exacerbate those constraints. The danger is that those passing through this system will be at heightened risk of failing to receive a fair and full hearing of any appeal whatsoever. If so, the administrative decision to refuse asylum to, or deport, a person will go without any effective or independent oversight. That will be exponentially harmful, because it will tend to insulate the original administrative decision making from the degree of scrutiny that is necessary to have any prospect of improving and maintaining its quality.

The purpose of judicial review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve that, such as by ensuring access to high-quality legal representation from an early stage in proceedings, or by improving guidance. Instead of reducing need, the Bill simply removes access to Cart judicial review, which allows individuals to challenge decisions to refuse them a right of appeal where those decisions are made unlawfully. Doing so narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart judicial review is a vital remedy of last resort for people subject to unlawful decision making, and should be defended.

Turning to the statistics and costings, unlike prospective-only remedies or a presumption in favour of suspended quashing orders, it is right to say that reversing Cart was a recommendation of the independent review of administrative law. The counter-argument in favour of clause 2 is primarily said to be the cost of Cart cases and the use of valuable judicial resources. The costs of Cart JRs are described as a “disproportionate and unjustified burden” on the system. The Bill’s impact assessment estimates that between 173 and 180 High Court and upper tribunal sitting days will be freed up each year through clause 2, representing savings of between £364,000 and £402,000 a year. That figure is not high—it is less than some Members can pick up in their alternative jobs over a period of a few years—especially when considering the important role of Cart JRs in preventing serious injustice and ensuring that key decisions of the upper tribunal are not insulated from challenge.

A High Court judge can consider at least five applications for Cart judicial review in a single sitting day, an assumption that may be overstating the time taken to consider a single case. That figure of £364,000 to £402,000 is also inflated, because it considers the costs of the upper tribunal rehearing the case. That will occur because an unlawful upper tribunal permission decision has been identified by the High Court, so including those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position cannot be acceptable.

Further, the average number of hours per Cart judicial review in the High Court that the impact assessment provides is 1.3 hours—again, that means up to five Cart JRs per day, which could easily be overestimating the time it takes a High Court judge to consider a single Cart judicial review case. That is especially true because there is a specific streamlined procedure for Cart JRs, which includes that if permission for the Cart JR is granted, unless a substantive hearing on that judicial review is requested, the court will automatically quash the upper tribunal’s refusal of permission. Moreover, that figure is inflated because it includes the cost of the upper tribunal rehearing the appeal in a successful case. That would constitute a cost saving resulting from allowing unlawful decisions to stand: those costs would only be saved because the upper tribunal’s unlawful refusal of permission to appeal was immunised from challenge.

There is already a high threshold for the use of Cart judicial reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart judicial review of a decision must be submitted within 16 days of the initial decision having been sent, instead of the usual three months available in other types of judicial review. Unlike other judicial reviews, there is no right to an oral hearing: Cart judicial reviews are dealt with by paper application only, thus requiring minimal judicial resources.

As we have already touched on, IRAL’s recommendation to reverse Cart judicial review was based on the 0.22% figure, but I think it is now generally accepted that that figure was seriously flawed. The criticism of that figure attracted the support of the Office for Statistics Regulation, and the Government have now accepted it: their own analysis suggests that at least 3.4% of cases are successful, a figure 15 times higher than IRAL originally estimated. However, that figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JR are considerably higher. I know that there are a number of figures flying around, but I think quite a persuasive case was made for the figure of around 5%. I think the variation stems from IRAL’s misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities that mean that they are rarely accurately reported.

Further, the Government’s definition of success does not reflect the purpose of Cart JRs and is unduly narrow. The analysis in the consultation response and impact assessment adopts an unduly narrow definition of success, which artificially deflates the success rate and artificially increases the projected cost savings. The Government define success as not only success in a judicial review, but also a finding in favour of the claimant at a subsequent substantive appeal in the upper tribunal. That is because the Ministry of Justice assumes that a Cart JR is successful if not only the upper tribunal’s refusal of permission to appeal is overturned, but permission to appeal is granted and the appeal against the first-tier tribunal’s decision is allowed.

That excludes all the cases in which Cart judicial review played a vital role in correcting an error of law in the upper tribunal’s refusal of permission to appeal, but the subsequent appeal was dismissed. That is not the normal approach to defining success in judicial review. It ignores the benefit that flows from a case that meets the Cart criteria being heard in the upper tribunal, allowing that more senior tribunal to consider important points of principle or practice and opening up the possibility of appeal to the Court of Appeal, thus preventing the upper tribunal from being insulated from the general courts system.

A Cart judicial review should be regarded as successful if it results in the refusal of permission to appeal being overturned. If we adopt that definition, the success rate is more like 5.5% or 6%, which is some 25 times higher than the IRAL panel thought and means that more than one in 20 cases are successful. That might be regarded as a reasonable and appropriate success rate for challenges to decisions by a senior tribunal, but that view is surely fortified by the nature of the issues at stake.

In any full assessment of the proportionate use of judicial resource, account needs to be taken of the weight of the interests. In the administrative appeals chamber, many appeals concern access to benefits that are designed to prevent destitution and homelessness, or to meet the additional living costs of disabled people. In the immigration and asylum chamber, almost all cases involve asylum and human rights appeals. The potential injustices at stake concern the most fundamental rights and may literally be a matter of life and death. The cases that succeed in a Cart judicial review will also, by definition, involve important points of law or practice, which would otherwise not be considered, or compelling reasons such as the complete breakdown of fair procedure.

Cart JRs have several purposes, including the identification of errors of law in upper tribunal permission decisions where important issues of principle or practice are raised. That will be achieved if the upper tribunal’s refusal of permission to appeal is quashed. The impact assessment states that of a total of 92 cases, out of 1,249 applications, 48 were remitted to the upper tribunal for permission to appeal decisions. That is in the context of immigration Cart JRs for 2018-19, minus cases pending an appeal decision in the upper tribunal. Therefore, based on those figures and a more accurate definition of success, which still does not account for settlement, the success rate is 7.37%—more than double the 3.4% that the Government now rely on, and more than 30 times the original figure cited by IRAL. In addition, there is required to be an arguable case that has a reasonable prospect of success.

In short, the streamlined procedure for Cart judicial reviews, together with the high test for permission in Cart cases, provides a proportionate means of achieving the aim, which the Government commend, of ensuring some overall judicial supervision of the decisions of the upper tribunal in order to guard against the risk that errors of law of real significance slip through the system. An entirely appropriate and proportionate amount of judicial resource is used in identifying and correcting errors of law that would have potentially catastrophic consequences for the individuals concerned.

As I have said, it is not just the number of cases but their nature that is concerning. Many relate to immigration and asylum. Many of the remainder concern access to benefits for the disabled and others facing destitution. The result of these appeals may decide whether someone has the means to live and to be housed, or whether they may be deported, separated from their family and face potential mistreatment, and the Government are not unaware of that.

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Anyone allowing any actor free rein to exercise a power without the possibility of scrutiny is alien to the democratic principles under which we are governed. More important than the precise success rates of Cart JRs are the nature of those successful cases. As mentioned above, cases in which a wrongful decision by the upper tribunal is overturned by way of Cart JRs are ones with grave consequences.

[Alex Cunningham]

As we are looking at this whole issue of scrutiny, which is so important, I cannot quite understand why the Government or anybody else would not want greater scrutiny of what they do on a day-to-day basis. Does my hon. Friend understand my feelings on that?

[Andy Slaughter]

I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.

In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.

I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.

In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.

Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.