Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Department Debates - View all Andy Slaughter's debates with the Cabinet Office
Judicial Review and Courts Bill
Andy Slaughter ExcerptsTuesday 26th October 2021
(3 years ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Andy Slaughter (Hammersmith) (Lab)
I welcome the Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge) to his place and wish him well on his first outing for the Ministry of Justice. He might be tempted to reciprocate when he speaks, but as this is my third time in the job, that would be unnecessary, just like significant parts of this Bill.
I am sorry to be leaving the Justice Committee after a number of years, not least because of the able and consensual chairing of the hon. Member for Bromley and Chislehurst (Sir Robert Neill). I need not feel neglected, however, as so many members of the Committee have followed me to the Chamber today. This is almost like a meeting of the Justice Committee. With the hon. Members for Lanark and Hamilton East (Angela Crawley), for Newbury (Laura Farris), for Aylesbury (Rob Butler) and for Crewe and Nantwich (Dr Mullan) here, we almost have a full house. I commend all their contributions, and indeed the contributions of all other Members this evening. This has been an intelligent and considered debate that I hope will set a good precedent for the exchanges across the Dispatch Box.
Parts of the Bill are functional and unexceptional, and we will not make points for the sake of it. Indeed, much of part 2 has been revived from previous Bills that fell in the political mêlées of the past few years. The debate has shown, however, that there are serious concerns around part 1, as the shadow Lord Chancellor, the Scottish National party and Lib Dem spokespersons and others have indicated. I particularly want to mention the contribution from the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), who, with his usual thoughtfulness, went through some of the problems in clauses 1 and 2 in forensic detail. Despite having had the benefit of some very learned briefings from organisations working in the field, I heard him make some points that had not occurred to me or to them. I hope that he will be joining us on the Public Bill Committee in order to pursue those matters further.
I thank all Members for their contributions, and even though the right hon. Member for Haltemprice and Howden (Mr Davis) did not speak in the debate other than to intervene, we felt his presence in the room. His articles in The Guardian and elsewhere really have hit the nail on the head and shown that, despite what some Members have said, there are very real concerns about the Bill. It always needs to be said when talking about the Lord Chancellor that he was a protégé of the right hon. Member for Haltemprice and Howden, which we do not see very often these days. I am reminded of King Lear, rather than Edward Lear:
“How sharper than a serpent’s tooth it is to have a thankless child!”
Our primary concern with this Bill is that the proposals for judicial review are regressive and uncalled for, more especially when, as my right hon. Friend the Member for Tottenham (Mr Lammy) set out, many aspects of the justice system are in a state of profound crisis—aspects that these measures do nothing to address and much to distract from.
The Ministry of Justice should be devoting all its efforts to tackling the record court backlog and working to restore women’s faith in the criminal justice system. We have heard several times today of the more than 60,000 outstanding Crown court cases, due in part to the shortage of practitioners, with proceedings delayed because barristers cannot be found to prosecute or defend, and the shortage of judges and recorders. The Lord Chancellor recently admitted that he cannot say when the backlog will get back to pre-pandemic levels, but last week’s National Audit Office report enlightened him by suggesting that the backlog could still be 25% above pre-pandemic levels three years from now.
That is an important point. We often had this debate on the Justice Committee, and the hon. Member for Crewe and Nantwich said that backlogs have risen and fallen under different Governments. I concede that point, but the important point is that when the backlogs were high under a Labour Government they were quickly addressed and quickly fell back to low levels. There is little sign at the moment that the Crown court backlog is coming under control or is likely to reduce to acceptable levels.
Rape prosecutions and convictions are at record lows, even as reports to the police rise steadily. The Government’s own review said that Ministers are deeply ashamed of this dire situation and pledge to get prosecutions and convictions back up to 2016 levels by the end of the Parliament, but the Prime Minister said during his party conference speech that he cannot guarantee the target will be met.
We have recently seen two excellent reports on legal aid by the Justice Committee and the all-party parliamentary group on legal aid, and the Minister and I attended the launch of the latter last week. The reports document the collapse in access to justice since the Legal Aid, Sentencing and Punishment of Offenders Act 2012. In the face of this unprecedented crisis, what is the Government’s legislative priority? Why are we here today? This is another political attack on the judiciary.
Weakening judicial review and attacks on human rights legislation have formed predictable purple passages in the last few Tory manifestos. The previous Lord Chancellor was a half-hearted cheerleader. To his credit he was half-hearted, so he had to go. The noble Lord Faulks proved to be too much of a lawyer and too little of a politician, so his review was set aside and a second consultation staged, and now we have this Bill.
Although it is correct to say that some of the threatened intrusions on the judicial role have not yet materialised, although we have yet to see the new Lord Chancellor at full stretch, there is plenty of mischief in this Bill, with the hobbling of judicial review by prospective-only orders, the fettering of judicial discretion by presumptions in favour of prospective and suspended orders and the ousting of judicial intervention in Cart and perhaps other cases.
The false dichotomy that the Government wish to argue, as in the recent speech by the Attorney General, is that democracy and the rule of law are two opposing forces that need to be brought more into balance by weakening the latter. Nothing could be further from the truth. They are two sides of the same coin, or rather one provides the tracks on which the other can smoothly run.
This Government’s true motive is to escape accountability for malpractice. It is one of the defining features of this Government that they simply do not believe the same rules should apply to them as apply to everyone else, and that starts with the Prime Minister and works its way down. An unbiased observer—I offer myself for this role—might say that the Government want to mute every avenue of accountability, from the BBC to the Freedom of Information Act and now the courts.
Specifically, the removal of the retrospective effect of a quashing order will have a chilling effect on judicial review. What is the point of the seeking of a remedy without redress? Victims of past unlawful state actions might not be compensated. Litigants who are similarly impacted before and after a judgment will be treated differently. Legal aid may be refused on the grounds that a remedy for past loss is not available. All in all, the Bill goes much further than the dry terminology of the statute suggests. It also goes further than the independent panel recommended: it saw no need for prospective-only orders and dismissed the idea of presumptions in favour of them.
As we have heard, the Bill will also abolish Cart judicial reviews, which are most often used in serious asylum and human rights cases but have also been used in welfare cases when someone was on the brink of being made destitute or homeless. That is the answer to the point about the fact that the success rate may not be among the highest—albeit it is still higher than the Government previously said it was—and the reason why there is a special reason for retaining such reviews. Those points have been made but they are, with respect, not good points, because Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations. The Bill’s impact assessment concedes that, saying:
“The majority of Cart cases relate to Immigration and Asylum, therefore those who lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
Cart reviews are an important safeguard and there is already a high threshold for bringing them. Moreover, the original proposal was based on wrong data, as I have said. I agree that the estimate of the percentage varied from the clearly wrong 0.22%, to the 3% that the Government now maintain, to the nearly 6%—30 times the originally cited figure—on which a number of learned and informed sources have made submissions to us.
Let me give just one example—there will be time in Committee to give a lot more—of the type of case affected. G was trafficked into the UK from her home country of Nigeria. Traffickers in both countries had brutally mistreated her and subjected her to serious physical and sexual abuse. While she was in the UK, she gave birth to a child, whom she looked after alone. The Government did not dispute that G was a victim of trafficking, but a tribunal convened to decide what support and protection she ought to receive went beyond the statements of the parties and decided that she was not, in fact, a victim of any trafficking or exploitation. This meant that she could be removed from the UK and would have resulted in her falling back into her trafficker’s hands.
The Cart procedure was used to re-evaluate the decision before the High Court. The Court found that the tribunal had made a series of errors leading to
“elementary and serious breaches of the principles of procedural fairness”
and that, as such, its decision could not stand. The High Court ruled that G’s case was not only arguable and should have proceeded, but that it was “bound to succeed” based on the strength of her claim. Without that ruling, the tribunal’s original “fundamentally flawed” ruling would have been put into effect, putting G and her child in the greatest danger imaginable. It is difficult to see why such a case should be refused the opportunity of legal remedy. That is certainly the opinion that the Bingham Centre for the Rule of Law and others have impressed on us in briefings, right up to and including today.
The Government’s statements on matters going beyond Cart suggest that the use of an ouster cause will serve as a template to abolish other types of judicial review in future.
The press release announcing the Bill stated that
“the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That is quite chilling in itself. The Government would do better to heed the words of Lord Neuberger, former president of the Supreme Court, who said last week:
“Ouster clauses…which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity”.
Perhaps with an eye on this latest legislative attempt to rein in our independent judiciary, he added that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected.”
Perhaps also the Conservative party is no longer a party of individual rights.
Part 2 contains a number of measures to increase the use of technology and online justice procedures, some of which, as I have said, have been rehashed from earlier legislation. The justice system has to adapt to new technologies, just as the rest of us do—some with more success than others—but technological change does not affect everyone in society equally. We cannot have a justice system where people are locked out because they do not have the means or the knowhow to navigate the digital frontier. We must make sure that this drive to digitisation leaves no one behind. Justice must never be sacrificed for efficiency.
If there is sufficient opportunity, for example, for taking advice on pleas to be heard before a tribunal for open justice, are corners being cut in the interests of rapid and economical disposal of cases? All those questions arise in revisions currently in part 2 of the Bill. We also have concerns around plans to set up an online procedure rules Committee. The Committee itself makes sense, but why, given that it is supposed to be a practical aid to practitioners, is it a creature of the Lord Chancellor, who merely has a duty to consult the Lord Chief Justice and the senior president of tribunals before making amendments to the rules?
The last major area of concern we have is in the provisions relating to coroners’ courts. Again, there is a danger that, in a rush to reduce unnecessary procedures and facilitate greater online participation, people who are less capable of navigating the new system will be excluded. There is nothing to address existing problems with the coroners’ service and, on Thursday, we be will debating the Justice Committee’s excellent report—I was a member of the Committee at the time—which raises a number of serious issues, including, in particular, the inequality of arms, as we have heard from many Members today, faced by many bereaved families who are not entitled to legal aid at inquests where the state is representing. We can discuss that in Committee and we can discuss it on Thursday.
The peremptory response and dismissal of many of the Committee’s major recommendations is something that the Government should look at again. It is another example of why this Bill is not fit for purpose. There is too much focus on areas where the law works well, and too little where it is failing. Above all, it is an unforgiveable distraction at a time when all focus should be on getting the justice system back on an even keel. The Bill seeks to undermine the rights of the individual against the state and it looks like another attempt by this Government to stoke a political war with the judiciary—something that would be more recognisable in Hungary or Poland.
We can try to salvage the administrative good from the political bad as the Bill progresses through both Houses, but there is no way that any Member of this House who cares about the rule of law or the checks and balances of our constitution should be supporting this Bill on Second Reading tonight.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Second sitting)
Andy Slaughter ExcerptsTuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Q
Richard Leiper: My name is Richard Leiper QC. I am a specialist in employment law and related civil matters. I am also chair of the advisory council of the litigant in person support strategy. In that capacity, I was part of a shadow online rules committee that was chaired by Mr Justice Langstaff.
André Rebello: I am André Rebello. I am the senior coroner in Liverpool and the Wirral and the honorary secretary of the Coroners’ Society of England and Wales, the judicial association for coroners. I have been a coroner for over 28 years, and I welcome, with some caveats, all the provisions relating to coroners in the Bill.
Andy Slaughter (Hammersmith) (Lab)
Q
André Rebello: A coroner’s jurisdiction is inquisitorial. It is an inquiry; it is not litigation. In the vast majority of inquests in which the state is represented—apart from some very high-profile inquests—those representing the state are actually representing, in effect, a body corporate, to provide a voice to an organisation. They often facilitate the proceedings, assist the court and, more often than not, assist bereaved families to understand the issues before the court.
Andy Slaughter
Q
André Rebello: As you will recall from the Justice Committee hearings with the chief coroner, the deputy chief coroner and myself, more than 95% of inquests are heard by coroners sitting alone. The coroner has an enabling role, and it is the coroner who carries out an inquiry. Only the coroner can call evidence, and you will also recall that the coroner’s court is the only court where no one actually brings a case to prove. We are led by the evidence, and the coroner’s role is to level the playing field.
Andy Slaughter
Q
André Rebello: Where there is representation, you should recall that from section 41, where the properly interested persons are identified, they have rights with regard to disclosure of advance information, but thereafter their duty is to assist the court in finding the true facts as to who the deceased was, when and where they died, and by what means and in what circumstances they came by death in certain cases. That is all done without determining criminal liability by a named person or any question of civil liability. This is an inquest, not litigation.
Andy Slaughter
Q
André Rebello: Lots of things caught my eye, however, I am a judge and not the Executive. It must be for the Executive to make policy. However, I will reiterate the issue of the national shortage of pathologists desperately needs addressing. The fees have not been increased for over 20 years and that is something which must affect the number of pathologists available to facilitate coronial investigation.
Andy Slaughter
Q
André Rebello: I have seen the Government’s response to that. However, being at the coalface and knowing the lack of pathologists across the country, something needs to be done.
The Chair
Richard, do you wish to respond to this question?
Richard Leiper: No thank you.
Dr Johnson
Q
André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.
I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.
Andy Slaughter
Mr Leiper, am I okay to ask you about employment tribunals?
Richard Leiper: You can.
Andy Slaughter
Q
Richard Leiper: I do not see any particular issues with them, but they do seem primarily administrative in that they are reflecting changes. There are issues about the composition of the tribunal, which I suspect some people may have concerns about. There has been quite a substantial shift in tribunals being presided over by a judge alone rather than being supported by members, for example, but in my experience, that has not been unsuccessful. The provisions seek to further that, as I understand them.
Andy Slaughter
Q
Richard Leiper: Yes. On where it fits, I do not know why, historically, it has not fallen within the Ministry of Justice; it has always been slightly out on a limb in that it has not.
Andy Slaughter
Q
Richard Leiper: As I understand it, they are desperately trying to recruit more judges, which is an underlying problem. Another problem that I do not think the Bill would address is the financial support and infrastructure for employment tribunals. Individual employment tribunal centres are essentially fractured in the IT that they have, as I understand it, and that has caused significant problems, particularly at the beginning of the pandemic, when remote hearings were almost impossible because the tribunal just lacked the software and infrastructure to be able to do them. There has been a chronic underfunding of the tribunals system for a very long time, and if the backlog is going to be dealt with, the system desperately needs that support.
Andy Slaughter
Q
Richard Leiper: Yes—well, not problems, but it has meant that more people have been able to bring their claims. I do not see that as a problem, but it has created more cases that need to be dealt with, yes.
The Chair
I thank both our witnesses for being present today and giving evidence, which I am sure the Committee has found very useful indeed. We will now move on to the next panel of witnesses.
Examination of Witnesses
Sara Lomri, Ellie Cumbo and Louise Whitfield gave evidence.
The Chair
We are now going to hear evidence from Sara Lomri, deputy legal director at the Public Law Project; from Ellie Cumbo, who is head of public law at the Law Society; and from Louise Whitfield, who is head of casework at Liberty. We have until 3.30 pm for this panel, and we will try to make sure that the questions are fairly sharp. If the answers can be equally sharp, we will get more questions in and I am sure it will be much more fruitful. I can see two of the three witnesses on screen, and the third witness is present in person. First of all, can each of you briefly introduce yourself, and then we will open it up to questions?
Sara Lomri: Hello, I am Sara Lomri. I am the deputy legal director at the Public Law Project.
Ellie Cumbo: Good afternoon, my name is Ellie Cumbo, and I am the Law Society’s head of public law.
Louise Whitfield: I am head of legal casework at Liberty. I will be talking on behalf of Liberty, but I have been a judicial review specialist for 20 years, so I may refer to my experience in practice previously.
Andy Slaughter
Q
Sara Lomri: I am happy to go first, and thanks for the question. Ultimately, the short answer is no, they are not justified. IRAL, which you were talking about this morning—Lord Faulks’s review—asked for lots of evidence. They were asked to review administrative law in a really short timeframe, and they were not able to go into the kind of level of research detail that we would have liked them to, but they nevertheless did a valiant job. They gathered evidence from right across the public law world. Although some of their recommendations are slightly mirrored in the Bill, the Bill in fact goes so much further, and we really cannot see the evidence base for the proposals put forward in the Bill. The Government say that the proposals will, for example, give judges more flexibility, save time and money and promote the rule of law. We think exactly the opposite. I am happy to go into that in more detail now, or to let my colleagues answer and come back in.
Andy Slaughter
Q
Sara Lomri: Absolutely not; in fact, quite the contrary. We think that clause 1 will draw judges further into potentially political ground where they will be asked to look at the impact of implementation of the order, and they may be drawn into further satellite litigation around what order is available.
I think it is fair to say, and I do not think this came out in any of the evidence given this morning, that JR is a remedy of last resort. As a solicitor, I represent individuals who bring judicial review. The cases are about hospitals and care homes closing, policies discriminating against service personnel and disabled children being denied proper care. It absolutely is a last resort. It is really hard to access legal aid for judicial review, which is heavily restricted.
It is a very low-volume jurisdiction. Around 4,000 applications are issued a year and, of those that get permission, only a third or so proceed to trial: that is fewer than 1,000 cases a year. Of course, a few of those cases will feel very political to the Government, but that really is the absolute minority of judicial review cases—which, in any event, is a low-volume jurisdiction. I will leave that point there.
Ellie Cumbo: It is not for the Law Society to speculate on the motives—we are interested in the effect. I want to draw particular attention to the proposal to create prospective-only quashing orders, which appears in clause 1. It is important to understand that that is a drastic new suggestion that did not arise in the report by the independent review of administrative law. Its effect would be to remove a remedy from a person who successfully challenges a decision and proves that it is unlawful. Is it not the most basic requirement of a justice system that, if someone brings and wins a case, they are entitled to an effective remedy? The proposal really is very difficult to justify, and is a radical departure from the expectations that I suggest all of us—including all of your constituents—have of an effective justice system.
The point that we are most concerned about, which also appears in clause 1, relates to the statutory presumption. It is less drastic, in the sense that presumptions do, of course, exist in the law. However, it is difficult to understand the justification for creating a new set of remedies and then creating a presumption that those are the default remedies, in the absence—because there can be none—of any evidence as to their effect as a remedy. We are concerned that there is simply no justification for the Government’s own rationale for those particular provisions in clause 1.
Louise Whitfield: I would like to add that I think there is no justification, because there is no evidence the proposals will improve public-body decision making. One of the main benefits of judicial review is that it holds public bodies accountable—not just central Government, but all sorts of public bodies that make decisions affecting people’s day-to-day lives. If it improves public body decision making, we would expect to see reforms that were going to help that.
In actual fact, Liberty thinks that the reforms will hinder the ability of public bodies to make good decisions because they will be tempted to gamble more. The proposals create a risk of incentivising the public bodies because they will not have to put right the wrongs that are found by the court. It will buy them a couple of years while the case is fought out, and they will know that there is a good chance of getting a prospective-only remedy or some suspended quashing order, even if it is found that the policy or decision was unlawful. That is the other piece of the jigsaw: it lacks any justification for saying that the proposals will improve the quality of public body decision making.
Andy Slaughter
Q
Sara Lomri: That is right. We say that the best evidence puts it at around 5.7%. We are particularly concerned that, in response to IRAL, the Government agreed that there should be judicial supervision of the decisions of the upper tribunal, particularly in relation to refusals of permission to appeal, citing the significant cost as a reason to abolish Cart JRs.
In actual fact, the total cost save is around £364,000 to £400,000 a year. The data relied on by IRAL was incorrect—it has agreed that it was incorrect—and, in fact, it looks more like 5.7% to 6% of Cart JRs are successful. In fact, there is not a significant cost. It is £364,000 per year which, given the constitutional principle at stake, is not a significant cost.
Andy Slaughter
Q
Ellie Cumbo: I would just say again this is a really drastic suggestion. Remember, it is for Parliament, not Government, to decide when to oust the jurisdiction of the courts and remember that the effect of it is to prevent a remedy when a decision has been found to be unlawful. The importance of that should not be underestimated. Parliament is supreme and has that right, but it must be considered on a case-by-case basis, as long as the circumstances are appropriate. We would welcome an indication from Government as to when they would consider it appropriate to ask Parliament to pass future ouster clauses.
Sara Lomri: I would tie it back to an article by David Davis on 25 October, in which he talks about the Government’s plans to restrict the use of judicial review in this Bill as an obvious attempt to avoid accountability. He refers to previous attempts by previous Governments, so obviously it is not just this Government, but David Cameron’s Government and before that Tony Blair’s Government attempting the same thing in a different guise. PLP would say that consideration of ouster clauses is constitutionally really problematic. We understand that it comes up from time to time, but it is not in this Government’s best interest to do that. It will really impact the way in which decisions by this Government and future Governments can be held to account.
Louise Whitfield: I echo those points. Liberty’s concern is that this is the death of judicial review by a thousand cuts. It would chip away at the fundamental right of citizens to challenge Government and other public-body decision making. If we start down the road of ouster clauses, the question is when will it stop and what else will be subject to ouster clauses until we are left with virtually no judicial review at all?
Andy Slaughter
Q
Ellie Cumbo: I am happy to say on behalf of the Law Society that we support the creation of suspended quashing orders. That enhances remedial flexibility and how can that be anything but a good thing? As I have already indicated, our concern is with the presumption that those then become the default remedy, when they do not already exist and there is no evidence base as to the extent to which they are an effective remedy.
Andy Slaughter
Q
Sara Lomri: PLP would add that the judges already have those powers. There are cases where suspended orders have been made, but the judges have used them very sparingly. I heard earlier today your witnesses talking about increasing discretion and flexibility for judges. Absolutely, clause 1 does not do that. As the Lord Chancellor said in The Daily Telegraph on 17 October, it is about trying to mandate judges and that is really problematic for the reasons that we have already set out.
Andy Slaughter
Q
Sara Lomri: We think that they are dealt with by the judiciary itself. It does have that power, and it is not needed in the Bill.
Louise Whitfield: Liberty’s position is the same: the judiciary has the power. We do not see that there is a difficulty in legislating to clarify that it does have the power, but it is the presumption that becomes problematic.
One of the points that is missing from this debate and discussion is that this will actually add a very considerable layer of further complexity and cost and take up more court time, in a way that will make judicial review less accessible and less clear. There are already hearings just about remedies. If you add on top of that a whole layer of arguments about six different factors as to whether you should get an immediate quashing order or a suspended quashing order, I think, based on my experience, you are going to have a lot of very lengthy legal submissions in writing and further hearings; you will have to list the hearing before the same judges who heard the original trial. It is going to increase costs, and it is going to make the litigation more risky for claimants. It is going to be off-putting because of the difficulty in advising people about their chances of getting the order to which we say that they should be entitled if it has been held that something is unlawful.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
“an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.”
That also reflects the view of Lord Sumption who, the witnesses will be aware, has commented:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament … confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do.”
He added that
“if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”
There is clearly a problem. We have heard that from other witnesses this morning. The problem needs to be solved. I have some sympathy with the view that the Bill does not go far enough and that we could do more. However, the idea that we should do nothing seems to me to ignore the facts.
Ellie Cumbo: If I may say so, I have not heard facts. I have heard assertion; I have heard the opinions of two people, neither of whom have been recent practitioners. On behalf of the Law Society, I do not think that we would agree that we have seen evidence that there has been an increased politicisation of the courts. In any case, it is not up to the judges to decide what cases come before them. This question is largely about the remedies available in judicial review; that is what the Bill seeks to focus on. Our view is that judicial discretion is what enables a proportionate remedy that correctly responds to the facts of the individual case to be made.
Andy Slaughter
Q
Sara Lomri: Just in response to Tom Hunt’s point, originally, yes, IRAL made a claim that Cart cases had a very low success rate. In order to answer that question, we have to get into the weeds of how cases are brought and how they are reported. IRAL said that there were 12 cases that had been successful, which points to a success rate of 0.22%.
In fact, there is significant difficulty because Cart cases are not reported. Also, because of the way they are brought—through a different stream, and they do not go to hearing—it is hard to get to the data. Through the work that we did with practitioners and people we know who have been involved in Cart JRs, we came up with a figure of more like 5.7%.
The Government’s revised figure—following our successful challenge to that, which went via the Office for National Statistics, and they agreed with us—is something in the range of 3%. Other researchers have had a look at it, and they have said between 5% and 10%. Our own data indicates 5.7%, which is why we give that figure—and we think it is hugely more reliable than the Government’s 3%.
The Chair
Sir John, my interpretation of what you are saying is that you want to widen the scope of the Bill. The scope of the Bill is already set, so with the indulgence of the Committee, I move to the next questioner, Andy Slaughter.
Andy Slaughter
Q
Louise Finer: Thank you for the question. On clauses 37 and 38, we feel that, although they might be appropriate in some circumstances, they introduce some very real risks into the coroner service. Reflecting on the recent report by the Select Committee on Justice, and the extent to which it identified the continuing problem of inconsistencies and, essentially, a postcode lottery, depending on the coroner who hears the case, we are really concerned that there need to be some strong safeguards on clauses 37 and 38, to ensure that, in the kinds of cases that Inquest supports, day in day out, no new risks are introduced through the Bill.
What concerns us about these two clauses is very significant decisions being taken that could lead to the proper interrogation of evidence being curtailed at an early stage, when families would often not have legal representation to be able to argue the case to continue an inquest, or for an inquest to be heard. The kinds of cases that we have seen, were these clauses to be in place, include some where initially evidence suggested a death by natural cause, but where, as the inquest progresses, further evidence comes to light that suggests that the situation was anything but.
To refer briefly to one case, Laura Booth died in hospital after a routine eye procedure. She became unwell and developed malnutrition, due to inadequate management of her needs. In that case, the coroner was not initially going to hold an inquest, because it was considered a natural-cause death, but the family pushed for an inquest. The inquest reached such critical findings that it would have been quite shocking for that not to have occurred, had the inquest been discontinued. It was found that her death was contributed to by neglect, and that there had been a gross failure of care. We are suggesting that safeguards need to be built in, to ensure that cases such as that, which really need to be heard, in the context of a coronial system, where there is already a significant amount of discretion, should not be discontinued, and are in fact heard as appropriate.
On clause 39, on remote hearings and juries, we are really worried and broadly agree with the evidence of André Rebello. His conclusions were quite damning, to be frank, of the risks of remote hearings. Again, there may be some circumstances in which a remote hearing is appropriate. We see them as potentially very advantageous for pre-inquest hearings. A remote process can be very efficient. We do know some families who are happy to go ahead with a remote hearing but, of the families we support, that is a very small minority. Overwhelmingly, the families we have supported recently have very negative views and impressions of remote hearings.
We take issue with the Government’s justification for that aspect of the Bill, which we think is weak and unevidenced. It claims that remote attendance will reduce distress. We are not sure what evidential basis there is for making that claim. It certainly does not match up with our experience of the many families we are supporting at the moment. Although there may be some benefits to opening up the ability to join remotely, we do not see those as being introduced as an add-on and an advantage, but more as a taking away.
The argument about bringing coroners’ courts into line with other courts in terms of remote attendance glosses over the fact that the inquest process is quite a different process from that in other courts. We think there needs to be much more exploration, consultation and development and evidence to justify the proposal.
An inquest process can be a very traumatising experience for a family already traumatised. Imagine yourself having to sit through the inquest process and hear evidence about how a member of your family died. They may have been a long way from you in a prison or in a secure setting when they died. You may have no knowledge of how they died. The inquest process may be your first opportunity to find that out. Imagine doing that in your front room, without the support services that you would have in person at a hearing. We think that there are very, very real risks that families could be retraumatised and put through more distress rather than, as the Government claim, their distress being reduced.
We are concerned about remote juries. We have had recent experience of juries sitting in adjacent rooms to the coroner, and the coroner is then unable to see the jury as they would were they in the same room. We have seen some very concerning things, including jury members falling asleep, eating packets of crisps and so on and so forth. All such things would be much harder to safeguard against the more remote the setting. We think the Government need to provide more evidence to support their claims about remote hearings, to evidence much more clearly how they would work in the context of the inquest and how they would ensure that families were not put through more distress or their ability to participate effectively undermined.
Andy Slaughter
Q
Louise Finer: Our view is that this Bill presents a crucial opportunity to address the inequality of arms that is at the heart of the inquest process. There have been many calls from authoritative reviews and inquiries to address this and it is a disappointment to us that there is nothing in the Bill to address that inequality of arms. The Justice Committee report—so recent—was absolutely clear on this point. It makes no sense that on the one hand Members are concluding that and on the other a Bill is introduced that does nothing to address that. There are many other issues in the Justice Committee report that remain unaddressed in the Bill.
The inequality of arms is acute. One example came last week in the Westminster Hall debate on the Justice Committee report. Tim Loughton MP referred to the Shoreham air disaster. He said that he supported the case for public funding for inquests because of his experience of the Shoreham inquest. Very early on it was unclear whether the families would get funding for legal representation, but it was immediately clear that all of the 18 public bodies represented at the inquest would have automatic access to funding to represent themselves. Yet there was a big question mark over whether the families of the victims would receive funding for inquests. We acknowledge that the Government are bringing forward some measures to address the means test for exceptional case funding, and we welcome those, but we do not think that they go far enough. We very much hope that the Bill will seize the opportunity to do something about that.
Andy Slaughter
Q
Louise Finer: I will be as brief as I can. There are many issues in the Justice Committee report and many recommendations for an appeals process, a coroner service inspectorate, and a national coroner service, which would help to eliminate the inconsistency in the system. We support all those recommendations and would welcome any of them being incorporated in the Bill. Most importantly, the Justice Committee called for families to be put at the heart of the inquest process. What we are concerned about is that clauses in the Bill could actually go the opposite way. Instead of putting families at the heart, it could make it even harder for families to participate effectively.
Andy Slaughter
Chair, I was going to ask about judicial review, but I understand I will have time at the end.
The Chair
If we have time at the end. We have got three more questions that one or more of the panel may wish to answer. I call Tom Hunt.
The Chair
Andy, we have a bit of time left. Would you like to come back to your earlier point?
Andy Slaughter
Q
Stephanie Needleman: I will take clause 1. Justice supports the introduction of suspended-only quashing orders. We think that, after Ahmed, the law could do with clarification, and that putting statutory suspended quashing orders on a statutory footing makes sense. We envisage that the orders would be used in exceptional circumstances such as those that existed in Ahmed, where there had to be retrospective legislation to deal with the issues it caused.
Crucially, suspended-only quashing orders come into effect and have retrospective effect, even if it is slightly delayed. However, prospective-only quashing orders do not have retrospective effect, and we oppose those measures. You have heard a lot of arguments about why they undermine the rule of law; in particular, they do not afford a remedy to the individual claimant in front of the court, and more generally to other people in the same situation as claimants. For example, if someone paid tax under a regulation that was later found to be unlawful, they would not be able to reclaim the excess tax they had paid, because the Bill as currently drafted requires the regulation to be treated as lawful up until the point of that judgment. In relation to benefits, if ineligibility criteria were later found to be unlawful, under the Bill people would not be able to reclaim benefits that they would have been entitled to, because the unlawful ineligibility requirements would be deemed to have been lawful at the time they claimed their benefits.
We are particularly concerned about the presumption. We have heard from various people in Government that the provisions increase judicial flexibility, but the fact that there is a presumption is entirely opposed to the idea of increasing judicial discretion and flexibility. The presumption constrains judicial flexibility and remedial discretion by requiring the prospective-only quashing order to be used in certain circumstances. We are concerned that the prospective-only quashing order will have a chilling effect on judicial review. Even if a prospective-only quashing order would not in any one case be given, the fact that the presumption for it exists in the first place creates a chilling effect, as it is an additional factor for a claimant in deciding whether to bring a judicial review in the first place. It may also make it harder to obtain legal aid, because the merits criteria require there to be sufficient benefit to the litigant if successful. Those are our main concerns about clause 2. I will let Steve talk about clause 2.
The Chair
The Minister has indicated that he would like to ask a quick question. Steve, could you answer quickly so I can try to squeeze him in?
Steve Valdez-Symonds: I will do my best, and I will be led by you. I will say nothing about clause 1; we agree with the concerns raised. I ask the Committee to think back to the evidence of Professor Feldman. He is someone who supports clause 2, but he does so having expressed great disquiet about it in principle, and we agree with that. The principle of the matter is that statutory bodies, including statutory tribunals, which have limits on their powers set by Parliament, are required to be ordinarily subject to review by our constitutional courts to ensure that their powers are exercised properly and within the powers that are set, rather than, as he put it, being permitted to determine for themselves where the limits of their powers are. That is what clause 2 is removing.
There is nothing exceptional about Cart judicial review for immigration matters or the other tribunal matters that it relates to, except for the fact that it is a highly restrictive form of judicial review because of the particular practice direction by which the High Court has operated ever since the Supreme Court decisions in Cart and Eba, which curtail both the process, to make sure that it is less truncated, and the much higher test that has to be passed for the judicial review to succeed.
Professor Feldman then goes on to reach conclusions for suggesting why he none the less, despite his great disquiet, thinks it is appropriate to interfere in this way. There are several reasons why I think he is wrong about that, and why I think he misunderstands some of the things that have happened—including since Cart and Eba, and including those that are happening by legislation now—which more closely curtail the prospect of justice in this tribunal system. Perhaps in view of the direction from the Chair, I will write to the Committee immediately afterwards and spell out what those things are, so that the evidence is in front of you.
Sir John Hayes
Q
Aidan O'Neill: I am not sure whether it is the general view. I am certainly speaking from my own experience, having been involved in a number of cases of some import over the past 30 years of my practice. But I am also echoing the views set out in the formal response to the IRAL consultation by the Faculty of Advocates, which generally said that one thing that one ought to avoid in any discussions of the constitution is the notion of absolutism and of the zero-sum game—that if courts say something, that means that somehow the rest of us are—[Inaudible.]
We all benefit from the dialogue that goes on and the maintenance of a balance of powers. Frankly, I would not accept any suggestion that the courts have in any sense in recent years or earlier overstepped the boundaries of their stating what the law is, and the obligations that fall upon all of us to respect it, whichever position we are in. “Be ye never so high, the law is above you”, and that applies of course to lawyers and the courts as well, but it does involve this mutuality of respect, so I am sorry, I am afraid that when one looks at the evidence, there is absolutely no basis for declaring that the courts in recent years or earlier are overstepping any mark.
Andy Slaughter
Q
Secondly, we have heard—particularly this afternoon—about the effect on individual litigants, and that some of the provisions may be a discouragement, whether in mounting a case in the first place or in obtaining a remedy. What is your view on that?
Dr Tomlinson: I have concerns about both provisions. I will summarise my view in headline form.
In relation to clause 1, I would first like to clarify that I do not think it reflects what IRAL proposed; it goes further that what IRAL proposed. The risk with the changes to remedies is that they will leave some individuals without a remedy in their particular case—for instance, where a remedy is prospective only. There will also be a potential chilling effect on claimants. Why would you bring a case if there were a chance that your remedy is not going to apply to you? Why would you take the various risks involved? It is okay, in an academic sense, to separate out the issues of remedies and say, “They come at the end of the case,” but the practical reality is that claimants consider what will potentially come out of a case at the end, so remedies are relevant to that initial analysis on whether to bring a case in the first place.
Clause 1 also potentially puts judges in a position of having more power, in terms of remedies, than they have currently. Given the points that have been made today and in discussion with this panel, I am not quite sure that the way that will operate in practice is what is intended. I think clause 1 will leave some significant uncertainty that might also generate further litigation.
I have already spoken about clause 2, but very briefly, there are two really important points. One is the point of principle: does Parliament want to enact an ouster clause and is that a thing that Parliament should be doing? The second key point is the use of judicial resources: is Cart judicial review a proportionate use of judicial resources? The really basic calculation, to my mind, is that you have a roughly one-in-20 success rate. The cost of those cases is around £364,000 a year according to the MOJ’s figures—not a great deal of money. As I said earlier, the success rate is potentially higher than that.
The financial figures produced by the Ministry of Justice are, I think, a little bit too high in various respects—they include, for instance, the cost of cases won by claimants. Overall, I think there is a question there: is that cost worth it, given the kinds of errors that this Cart system protects against? There can be reasonable disagreements about that. My view would be that the cost of the jurisdiction is worth it because of the errors that it protects against—you have heard case studies of the impacts of those errors today. Those are my concerns in relation to clauses 1 and 2.
The Chair
Michael, do you want to come in? I know you tried to get on the previous question—I do apologise. If you can, please keep it very short. We only have seven or eight minutes left, and two Government Members want to come in.
Michael Clancy: Thank you, Chair. On clause 1, we were delighted that the Government decided to adopt a remedy that was in section 102 of the Scotland Act, allowing for the suspension of an order to give the parties time to fix the problem.
On clause 2, I made reference to the case of CM (Petitioner) in my written evidence to the Committee. It comes to the conclusion that the first tier, upper tier and the Lord Ordinary in the Court of Session may have misunderstood the claimant’s evidence in CM, and that a remedy for that is an extraordinarily well-placed provision for access to justice.
Turning to the last question prior to this one, I align myself with much of what Aidan O’Neill said. His quotation of Lord Denning—that no matter how mighty you are, the law is above you—is very apposite. I am not a politician and I am not going to get involved in a political debate, but it may be the case that the transformation of our legal system from one of a distribution of powers between Parliament, the judiciary and the executive into one where there is much more separation has given voice to some of the concerns. However, we are still in the early days of having that more strict separation of powers, and at some point in the future, when there is a change of Government, I think views might be quite different.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (First sitting)
Andy Slaughter ExcerptsTuesday 2nd November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
The Chair
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
The Chair
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Sir Stephen Laws: My name is Sir Stephen Laws. I spent my career in the Office of the Parliamentary Counsel, starting in 1976. From 2006 until 2012 I was the First Parliamentary Counsel, head of the office and responsible for the offices of the Government business managers. Since retirement, I have been a senior research fellow at the judicial power project at the Policy Exchange.
Professor Varuhas: Good morning, I am Jason Varuhas. I am a professor of law at the University of Melbourne, where I am also the director for the Centre for Comparative Constitutional Studies in the law school. My interests lie in public law, private law and the law of remedies.
Professor Ekins: I am from the University of Oxford. I have led Policy Exchange’s judicial power project for the last few years and have written a fair bit about cases involving judicial review that warrant criticism or are problematic. I have made submissions, as have my colleagues, to the independent review of administrative law and in response to the Government consultation, and most recently another paper for Policy Exchange outlining possible amendments that might be made to the Bill.
The Chair
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andy Slaughter
Q
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
The Chair
Who wants to take that question?
Professor Ekins: I will go first, and then my colleagues can take a turn. I am always happiest when agreeing with Lord Faulks, and I am certainly not willing to propose a radical overhaul of judicial review. It is a central institution of our constitution and there would be dangers in trying to put it entirely on a statutory basis—a course of action that has been thought through but that I think would be fraught with difficulty.
The question is whether it has gone too far in some domains and in some directions, and that conclusion is entirely compatible with the idea that you do not want to overhaul it at large and that no radical reform is necessary. A correction could be made in certain cases, where judicial review is extended into the heart of the political constitution, as you saw in the Prorogation case, which I know Lord Faulks was much exercised about and was highly critical of, and in other cases, where the techniques involved—we have talked about some of them already—are difficult to square with parliamentary sovereignty and the primacy of Government decision making in relation to the public interest, and where, rather than a supervisory jurisdiction being in play, one has intrusion into the merits.
One can make some significant corrections on the margins—if you call it the margins—without undermining the central value of judicial review. In relation to its value, Ministers should clearly be subject to the law; they should not exceed the scope of their statutory powers, or go beyond the scope of prerogative powers for that matter. The courts have a vital role to play in vindicating those legal limits and in correcting deficiencies in process, where decision making might have flouted the requirements of natural justice or in extremis has simply made an irrational decision, although one would expect that to be less common. So there is undoubtedly a very valuable role for judicial review to play, but that is consistent with noting—as do some senior and retired judges—that what has gone on in some significant, major, politically salient cases is unjustifiable and warrants a legislative response.
Andy Slaughter
Q
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action.
There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
Andy Slaughter
Q
Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a difficult place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, in this Bill, to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
Andy Slaughter
Q
Professor Ekins: I would not imagine that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Ahmed case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
The Chair
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Sir Stephen Laws: I think so; I apologise. I think I detected a problem at this end. There are some systematic approaches that need to be adopted. I think it is right that Parliament should retain its ability to react to individual cases, but that is difficult because time is short and, quite often, by the time the courts have set the framework, they have intervened, in a way, in the political argument.
I would like to come back to the point I was trying to make when I was muted. There are distinctions between intervention by judicial review in casework and intervention by judicial review in legislative actions, because the remedies and principles that are applied to legislative actions are themselves legislative. If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function. The systematic approach needs to distinguish more clearly between judicial review of legislative actions and system management issues, and judicial review of casework.
Professor Varuhas: Obviously, there are many cases in the judicial review casework of the courts that raise no problems whatsoever, but the IRAL report identified some problematic areas where there were patterns where courts were potentially exceeding the institutional and constitutional limits of their role. It was acknowledged in the conclusion to the IRAL report that there were some instances where the Supreme Court had exceeded the supervisory conception of review. It is also important to note that IRAL acknowledged very clearly that it was legitimate for Parliament to legislate in the field of judicial review, including the response to particular judgments. I note that the modern machinery of judicial review was established by legislative instruments and statute, particularly the Senior Courts Act 1981. The entire modern machinery of review is owed to legislation.
A number of problematic areas have already been mentioned by my colleagues. One is that the courts have turned from scrutinising individual decisions to scrutinising and evaluating entire administrative systems and invalidating them, without an acknowledgement that the courts lack expertise and experience in the field of design of large administrative systems.
Another area is in proportionality—where the courts strike a balance between competing considerations. That tends to supplant the role of the statutory decision maker, whose role is to weigh up all those considerations. Then there are the areas we have already mentioned, where the court has taken upon itself to speak for the polity in articulating constitutional values. One would expect that is a role for Parliament first and foremost. Also, there is where the courts have used those values to interpret legislation in the light of the concerns they consider normative appealing, rather than necessarily to give effect to the legislative intention that sits behind legislation.
What the IRAL process showed is that it can be very difficult to legislate as to the substance of judicial review at an abstract level, but what can be done is that responses can be made to particular judgments. There are plenty of examples through history where Parliament has done so. Also, the rules governing the procedure and remedies of review have always been housed in the Senior Courts Act—they are the product of Parliament; Parliament has updated and amended those procedures and remedies over time. This latest batch of reforms, particularly the remedial reforms, can be seen as a further incremental development of the remedial system.
Remedies can be important, because they can provide an outlet for wider concerns, such as the public interest or interest in good administration, and they can provide a way to modulate the boundaries of review, to ensure that it does not stray beyond ordinary practicalities and infringe upon fundamental principles. Again, I think that is entirely legitimate and there are many examples of Parliament legislating as to remedies.
Andy Slaughter
Q
Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.
The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset.
If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government.
Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated.
Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy.
In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back.
Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated.
We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently.
In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
Andy Slaughter
Q
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
The Chair
Who wants to take that one first?
Professor Ekins: I will, since I was talking about Cart just now.
It is true that they have signalled that. I think that this will be an effective ouster clause because it is a perfectly constitutionally irreproachable response to the Supreme Court’s judgment. It restates Parliament’s intention and is protecting a court’s jurisdiction—not an ordinary court’s, but a specialist court’s, albeit one with pretty wide jurisdiction.
I think that it will work as an ouster clause. I do not think that the courts will view it with disdain or try to undercut it as they have done with some other ouster clauses. To that extent, it will provide a framework, partly because it is limited: it is designed to limit judicial review without ousting it altogether. It is a safeguard in relation to true procedural failure, bad faith and so on, which is fine and proper.
I think that it could be used as a framework for other cases. In the Policy Exchange paper that I published last week, I suggested one such context: the Investigatory Powers Tribunal, another specialist court, which was subject to the protection of an ouster clause enacted in 2000, as David Davis mentioned in his Guardian article last week. That ouster clause was undercut by the Supreme Court in 2019, using some of the problematic techniques that we have talked about—openly departing from legislative intent and distorting the meaning of the statute.
I think that Parliament should enact an ouster clause, modelled on clause 2, that protects the Investigatory Powers Tribunal. There will be pretty sharp limits on how often you want to use the clauses, of course—this one is controversial, and they will all be controversial. Whenever there is a suggestion that there is not a proper context for ouster, the controversy will be higher.
We have talked before about intrusions that judicial review has made on some relationships at the heart of the political constitution. There is a case to be made for ouster, or for limitation of review, in that context. You will be aware of the Dissolution and Calling of Parliament Bill, which is making its way through Parliament now. Clause 3 of that Bill is a partial response to the Prorogation judgment, and quite rightly so; it protects the prerogative of Dissolution, when it is restored, from judicial review. I think that that is justified and that you may have to act similarly in relation to Prorogation law or other aspects of the political constitution.
I would not expect the approach to be widely used, but I think that there are contexts in which it is reasonable and justified.
Sir Stephen Laws: I agree with all of that. As a drafter of legislation, whenever I was asked to draft an ouster clause, as I was from time to time, my response was always: “There’s no hope of it ever succeeding, unless you’re presenting a politically and legally justifiable alternative route for people who would otherwise be going to the court.” That, of course, is what the Cart judgment does, for the reasons that Professor Ekins has given: the upper tribunal is a proper court; the Investigatory Powers Tribunal is a proper remedy; and, in the case of the Prorogation judgment, the remedy is political because that is how the constitution is set up. In relation to the major matters of the relationship between Parliament and Government, it is Parliament that has the remedy, ultimately, in being able to pass a vote of no confidence in the Government and require their resignation or a general election.
Professor Varuhas: On clause 2, the first thing that I would say is that it derives from a clear recommendation from the expert independent review of administrative law and has subsequently been subject to a full Government consultation. Former Law Lords have also come out in support of the policy, including Lord Hope, who is the former Deputy President of the Supreme Court, and Lord Carnwath, who—importantly—was the inaugural Senior President of Tribunals and was subsequently a Law Lord on the Supreme Court. He said that the ouster would restore what was always intended: that the upper tribunal should have equal status with the High Court. That was the intention behind its designation as a superior court of record. As colleagues have stressed, that is a really important point: the upper tribunal has equivalent status to the High Court.
There is a further point to be made, which relates to how many bites of the cherry one person might have. It is worth reminding ourselves what a Cart judicial review is. It will have been a claim in the first-tier tribunal that will have been unsuccessful. The claimant will then seek permission to appeal to the upper tribunal. The first-tier tribunal will decline permission, and then the claimant will appeal to the upper tribunal against the declination of permission to appeal to the upper tribunal. The upper tribunal will have declined permission to appeal. It is not clear, given the upper tribunal’s status as a superior court of record, that one then needs a further bite of the cherry by going to the High Court via judicial review, and potentially all the way up the judicial hierarchy.
Whatever the case is more generally, in this instance the clause is justified, and it is a targeted response to a particular problem. Also it is not a pure ouster, because in clause 2(4) the path remains open for claimants to bring a judicial review in the High Court in serious instances of illegality, such as where the upper tribunal acts in bad faith or in fundamental breach of principles of natural justice. That is an important point to bear in mind: there is still a route to the High Court in cases of serious unlawfulness.
Dr Johnson
Q
Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.
Andy Slaughter
Q
Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.
Andy Slaughter
Q
Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
Andy Slaughter
But a court might attempt to impose—
Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
The Chair
Q
Professor Feldman: I think that is completely right. There is a big distinction between quashing orders and declarations for this purpose. What Ahmed (No. 2) did was to eliminate the difference—a quashing order quashes, whereas a declaration can only declare that a body has a duty or has breached a duty or has not breached a duty, and that is something that is not limited as to time. I also agree with Dr Morgan as to the effect of Ahmed (No. 2) on lower courts. However, I think there is a big distinction to be drawn between the suspending of a quashing order where, as the Bill says, the retrospective impact remains when the quashing order eventually takes effect, and a prospective-only order, which seems to me to raise significantly more problems of principle and of practice.
Andy Slaughter
Q
Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.”
In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective.
The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state,
“if the impugned act is…upheld”
is very odd. Subsection (5) says,
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong.
I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
Andy Slaughter
Q
Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power.
Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle.
First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated.
Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step.
It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
Andy Slaughter
Q
Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.
I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out.
If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
Andy Slaughter
Professor Feldman, do you agree with that?
Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f):
“any other matter that appears to the court to be relevant.”
This opens up the field very nicely; I do not see anything there that is necessary.
Andy Slaughter
Q
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Professor Feldman: Is that for me?
Andy Slaughter
For either, or both.
Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect?
In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.
I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified.
Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered.
Dr Morgan: My position—
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Third sitting)
Andy Slaughter ExcerptsThursday 4th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
The Chair
I have some preliminary announcements. I remind Members that they are expected to wear a face covering, except when speaking or if they are exempt. That is in line with the House of Commission’s recommendations. Please also give each other and staff space when seated and when entering and leaving the room.
I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre on the estate or at home.
Observing the Members present, on the Government Benches at least, only the payroll vote are wearing a mask, although a couple more are putting on masks now as a result of my recommendation. I hope that during the course of today’s proceedings, Government Members give serious consideration to wearing a mask. Obviously, I am not wearing one, because I am chairing the event, and officials either side are at a safe distance.
Hansard colleagues will be grateful if Members could email their speaking notes to hansardnotes@parliament.uk. Please switch electronic devices to silent. Tea, coffee and other beverages, apart from water, are not allowed during sittings, so I recommend Members comply with that, otherwise they might not be called to speak.
We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment takes place when we come to the clause to which the amendment relates.
The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on any or all the amendments within that group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments, I shall again call the Member who moved the lead amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know, please.
Clause 1
Quashing orders
Andy Slaughter (Hammersmith) (Lab)
I beg to move amendment 12, in clause 1, page 1, line 8, leave out from “order” to the end of line 9.
This amendment removes the statutory power for courts to award prospective only quashing orders and preserves the status quo in relation to the retrospective effect of quashing orders.
The Chair
With this it will be convenient to discuss the following:
Amendment 35, in clause 1, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 40, in clause 1, page 1, leave out lines 15 to 18.
See explanatory statement to Amendment 12.
Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.
See explanatory statement to Amendment 12.
Andy Slaughter
It is a pleasure to be here under your chairmanship this morning, Sir Mark. I hope that we will have some interesting debates over the next few weeks. I also welcome the Minister to the first Bill he is to take through the House. I will also mention—[Interruption.] I was going to mention my own side, but they seem to have temporarily left the room for urgent Chamber business. I will not take that personally—not at this stage. In his absence, however, I am grateful to my hon. Friend the Member for Stockton North, who as shadow Courts Minister will lead for the Opposition on much of part 2 of the Bill. Like most Justice and Home Office Bills, this is a bit of a Christmas tree Bill—we are getting near to Christmas—so while I will lead on part 1, on coroners and employment tribunals, I am grateful for his expertise. I am also grateful to my hon. Friends the Members for Lewisham East and for Liverpool, Wavertree, who are current or former members of the Select Committee on Justice, and to my hon. Friend the Member for Blaydon, who keeps us all in order.
The Conservative members of the Committee are all here, I think, except for the right hon. Member for South Holland and The Deepings. I am wearing my intermediate glasses, which means I cannot see anything close up or far away. We did not hear a great deal from the Conservatives in the evidence sessions. Other than the right hon. Gentleman, they kept their powder fairly dry, but I will try and provoke them to more animation today.
Amendment 12 seeks to excise the most obnoxious proposal in part 1 of the Bill: prospective-only quashing orders. To give some context, the Government will present the Bill as a moderate, reasonable adjustment to the art of judicial review—no more than a rebalancing. The right hon. Member for South Holland and The Deepings gave some cover to that in his questions and comments in the evidence sessions. I do not want to put words into his mouth, but he suggested that it was a rather milk-and-water Bill and could go much further in reigning in judges to allow Parliament freer expression, if I understood him correctly. I disagree. I think that the Bill is a misreading of the purpose of judicial review and has an unhealthy focus on the constitutional periphery of its operation, rather than the practical effect it has on asserting the rights of the citizen against the state.
Antony Higginbotham (Burnley) (Con)
Would the hon. Member not accept, however, that in the 2019 election those of us on this side of the House stood on our manifesto that said we would look to reform judicial review? The Bill has not just been brought forward; my electorate in Burnley explicitly voted for it because they had seen the chaos in the 2017 to 2019 Parliament.
Andy Slaughter
I always defer to the electorate of Burnley, all of whom, I am sure, had a copy of the Conservative manifesto. I will come back to the hon. Member’s question, because I first want to give some context around the recent history of how we got to this Bill.
We took evidence from a large number of very senior experts. Even the Government-invited experts, if I may call them that, did not really agree with the Government’s view either—not even Professor Ekins, who had innumerable suggestions for other interventions by the legislature to reverse individual decisions but did not suggest codification or enshrining judicial review in statute, which this Bill does not seek to do. We disagree that the Government have been restrained or that the Bill needs more heft, either around the doctrine or individual case examples. We think it already goes too far.
We will argue today in Committee that prospective-only quashing orders strip claimants of their right to remedy and make the unlawful lawful. That presumption is in favour of suspended quashing orders, prospective-only quashing orders, fettered judicial discretion, and, in effect, a judicial process with heavy-footed statutory direction. The collateral damage caused by this interfering with a well-understood process of defining the legal limits of state actors will cause unintended victims and create more uncertainty and satellite litigation.
On clause 2, we will also argue that the use of ouster in Cart/Eba cases will not only leave very vulnerable persons in danger, but will open the door to more frequent incidents of legislation ousting the jurisdiction of the High Court, using the Bill as, in the Government’s own words, a template for further ouster clauses.
I am extremely grateful for the help and suggestions on how to structure these comments—from the Clerks for the way they group and help perfect the amendments, to the House of Commons Library for its excellent briefings and the many organisations for who sent us their thoughts. They are too numerous to name them all, but I must mention those that gave evidence on Tuesday: Liberty, Justice, Public Law Project, The Law Society and Amnesty International UK—all well known in the field of administrative law and human rights. We also received briefs from environmental, educational, equality and immigration non-governmental organisations and charities.
I mention that because the thrust of many of the arguments against the Bill are that it limits the ability of civil society in all its forms and of the individual to challenge the state. That is important because the attempt to characterise judicial review as the creature of lawyers and lefties, which to this Government appear to be two sides of the same coin, could not be further from the truth.
Judicial review is simply the modern name for the centuries-old common-law supervisory jurisdiction of the superior courts to ensure that decisions of public authorities, including statutory tribunals, respect the limits on their powers that are imposed by law. The existence of the courts’ common-law jurisdiction makes it possible for a person to go to court and argue that a decision or action of the state was unlawful. The court can rule that the decision or action was unlawful if it was illegal, irrational, tainted by procedural impropriety or a disproportionate interference with a fundamental right. It is one of the most fundamental checks and balances within the UK constitution to ensure that public authorities act fairly and in accordance with the law. It also gives individuals a route to challenge officialdom where it may have overstepped its powers.
To quote the right hon. Member for Haltemprice and Howden (Mr Davis), as I may do on more than one occasion:
“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”
Some of the framework rules for judicial review are set out in the Senior Courts Act 1981, but it is important to appreciate that the courts’ power of judicial review is not something judges have been given by Parliament, but an inherent common-law jurisdiction dating back centuries to when the courts first began holding power to account. Therefore, much of the content of these rules are spread across these different cases.
If a court finds that the decision or action was unlawful, it will make a declaration to that effect if it is just and convenient to do so. It has the power to make three specific orders: a mandatory order, which orders the state to do something; a prohibiting order, which prohibits the state from doing something; or—relevant to these discussions—a quashing order, which rules that a thing done by the state is void and has no legal effect. On the other hand, a declaration is simply a formal statement setting out the legal state of affairs. We will see the importance of that when we talk about suspended quashing orders later on. A declaration is non-executory in the sense that it does not command anyone to do anything; it simply declares what the legal position is.
A quashing order is different as it is executory: it orders something concrete and has legal consequences. A quashing order rules that a decision was void and therefore has no effect. Rather than simply declaring, for example, that a planning decision was unlawful, a quashing order would quash that decision meaning it has no continuing effect and has never had any effect from the moment it was made.
The long-established default position in judicial review cases is that where unlawfulness has been established, for example because a public authority has acted beyond its powers, a declaration is insufficient and one of the specific orders must be given. According to Lord Bingham, speaking in a judicial capacity, under the rule of law
“the discretion of the court to do other than quash the relevant order or action where such excessive… power is shown is very narrow.”
The Bill is not the first time in recent years that a Conservative or coalition Government have sought to rein in judicial review. Between 2010 and 2015, various proposals were consulted on and legislated for. In particular, in 2013, changes to the civil procedural laws reduced time limits for bringing claims in planning and procurement cases, introduced new fees and denied some renewed hearings. The Criminal Justice and Courts Act 2015 introduced provisions on leapfrog appeals, wasted costs orders and the refusal of some remedies.
However—interestingly—the most controversial proposals on legal aid and standing originally designed to be in that Act were not pursued. It was a case of rhetoric meeting the practice of the courts and the former withering in the gaze of the latter. Perhaps that will happen again with these proceedings—in the other place if not here—because we are again in the territory of crowd-pleasing rhetoric, or Back Bencher-pleasing rhetoric, coming under scrutiny.
Alex Cunningham (Stockton North) (Lab)
Can my hon. Friend think of any reason why a Government or any other body should be afraid of the judicial review process if they think that they got it right in the first place?
Andy Slaughter
I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.
People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?
Janet Daby (Lewisham East) (Lab)
Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?
Andy Slaughter
I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.
Antony Higginbotham
The hon. Gentleman seems to be putting forward a narrative whereby people listening to these proceedings, who do not know what is going on, might think that judicial review is going away somehow. Actually, that is not what will happen as a result of the Bill; it seeks to continue the evolution in ensuring that judicial review is used proportionately. Will the he confirm my understanding that judicial review will still be available for people who want to challenge Government decisions? It is really important that the general public do not think that a potential remedy is disappearing.
Andy Slaughter
The hon. Gentleman is being very sharp this morning, because he is always one point ahead of me. I am coming to exactly that in discussing how these provisions were formulated, and I accept entirely what he says. The Bill could have gone a lot further, and there were proposals to go further in the Government’s consultation, but that does not mean that there are not significant changes in the Bill. I do not agree that it simply tidies things up or that the changes are a logical progression, and I will try to persuade him of that slowly but surely.
Under the Bill, claimants and others affected by unlawful decisions made by the state could find that they win their case but get no proper remedy and see no real impact on their lives, or on the lives of anyone else who has been negatively affected. If I am right about that, it is a significant change. On the hon. Gentleman’s point, we were promised—I think in the same 2019 Conservative manifesto—overarching constitutional reviews of criminal law and democracy, but they have not materialised. It may be that wiser heads have prevailed, but it may also be that rather more quick and dirty results are being demanded.
The Government have opted instead for a series of reviews. In this discipline, the independent review of administrative law was established under Lord Faulks. It asked whether judicial review was being abused by creating needless delays and allowing political matters to be litigated through the courts. There was concern from many in the legal community that the review would lead to the courts being sidelined and the Executive being granted too much power without enough accountability. However, IRAL’s recommendations were mainly practical and incremental, and they did not contain the radical proposals that some had feared.
The panel was against codifying the grounds for judicial review. It thought that ouster clauses were appropriate only in limited circumstances, and it disapproved of prospective-only quashing orders. Perhaps for that reason, the then Lord Chancellor took the two IRAL recommendations that he liked—on suspended quashing orders and on reversing Cart—and conducted his own consultation. The consequences of that second bite, or some of them, are in the Bill, though it still has too little red meat for some people. The Bill proposes a range of further reforms that risk weakening the rule of law and narrowing access to justice for vulnerable people.
Clauses 1 and 2 seek to limit the vital check on Executive action and create a statutory presumption that remedies available in judicial review should be suspended or made prospective-only. Clause 1 gives judges the power to issue suspended and prospective-only quashing orders, the latter of which would prohibit future unlawful decisions without invalidating any prior actions based on that decision. The Bill undermines accountability and creates additional and unnecessary barriers to individuals seeking redress when they are affected by unlawful actions of public authorities.
Paula Barker (Liverpool, Wavertree) (Lab)
Does my hon. Friend agree that removing retrospection could mean illegal acts are thus made legal, and that there is very little remedy for those who seek recompense?
Andy Slaughter
My hon. Friend has put her finger on the main objection, but it is not the only objection. It will cause a great deal of confusion, and I do not think the courts will like it. They will therefore try to find ways around it, as courts tend to do in such circumstances, and there will be uncertainty over whether something was lawful, and whether it was lawful for all purposes. Again, I will come on to those issues, but this just opens cans of worms. The Government also assert that this is a simplifying and clarifying measure, but it will have exactly the opposite effect.
Marco Longhi (Dudley North) (Con)
I take issue with the hon. Member’s characterisation of how the courts may work under the new jurisdiction of the Bill, when it is enacted. He also mentioned the expert advice that we heard the other day. Jason Varuhas, professor of law at the University of Melbourne, stated:
“I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 10, Q6.]
Andy Slaughter
I am not persuaded by that. I do not want to disagree with the eminent professor, but I am tempted to say, “Two professors, three opinions”, and we had at least six professors. I thought it interesting that they did not all say what I expected them to say. There was some disagreement. The civil liberty organisations did not agree on everything—some supported the suspended order and some did not. I thought the openness of the first panel on that was quite refreshing. It is true that there are views on both sides, and that will always be true.
In the passage that the hon. Gentleman read out, I specifically disagreed with the idea that the Bill gives judges more power and discretion. In a literal sense, if we give someone a new type of order, we could say, “That has given them a wider range of options”. If we constrain how they can use those orders or we give them orders that they have not sought, however, it has exactly the opposite effect. We should be securing fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect this country’s international reputation for upholding and promoting the rule of law, not precluding practical access to public law remedies.
Unless the Bill is amended as we suggest, it will negatively affect the ability of ordinary people to hold the Executive to account and safeguard their own rights. That is the other side of the coin. We are, of course, interested in the respective powers and the balance between Government and the courts, but we are also very concerned—sometimes more so—about the individual citizen’s rights and their ability to get redress. Our laws and legal processes allow ordinary people to challenge Governments and public authorities when they get it wrong. They help us stand up to people in power. We all deserve effective access to justice and a fair hearing. Judicial review is a vital and necessary tool for good, effective and accountable policy making by Government and public bodies, and it is hobbled by this Bill.
Currently, if a claimant wins their case and succeeds in showing that a decision was unlawful, there will be consequences for the public authority. If the claimant was directly affected, that also means justice, in some form, for them and potentially for others affected by the decision. They benefit because when the court delivers its judgment that the decision that is being challenged was unlawful, it means that the decision was invalid and will need to be remade. The normal outcome of a successful claim that the state has acted unlawfully is that the court will confirm its conclusion by issuing an order stating that the state’s decision is quashed. That is a normal remedy for the wrong that has been done. The public authority must face the consequences of its unlawful actions, such as by retaking the decision or deciding it differently, and the claimant benefits from that happening. Sometimes they may also get some other form of remedy, as a result of the recognition that what happened should not have happened.
If the claimant was not affected by the unlawfulness themselves, others will usually have been, and they may also benefit from the judgment and the order. If the policy is found to be unlawful, anyone affected by it will benefit from that finding. The use of our judicial review powers has helped to ensure that equality and human rights law are respected, prompting positive changes in policies and practices. Many public bodies are subject to judicial review claims, and the prospect does not hinder good work, but rather helps to ensure that compliance with the law and good practice are at the forefront of decisions.
Under clause 1, the outcome could be that even when a claimant wins their case, they will not get any benefit; they will be in the same position as when they brought the case. The same will apply to anyone else who has been negatively affected—nothing will change for them.
Alex Cunningham
In his evidence to the Committee, Sir Stephen Laws said:
“In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 14, Q8.]
Does my hon. Friend agree that it is lamentable that even those who were called by the Government to give evidence have reservations about current relationships between the courts and politicians, and how they could be worsened in future?
Andy Slaughter
It is not unique to this Government to be found wanting or to be challenged by the courts in such a way. Other Governments have not found favour with the courts and may have resented their intervention, but on the whole those Governments have sucked it up, if I can put it that way. However, this Government seem to take the view—we have recent evidence of this—that if they do not like the way that proceedings are going or tribunals are conducted, they can simply change the rules or change the tribunal.
I agree with my hon. Friend. I do not want to be overly dramatic, but these are worrying times. The Ekins view, which I described in the evidence sessions as tit for tat—a decision is taken and if the Government do not like it, they have a ready-made power to change it—is bad enough, but tinkering with the court process is worse.
Alex Cunningham
There was much discussion in the evidence sessions about tit for tat, or whichever expression one wishes to use, and it is lamentable. Surely the Government have always been able to address issues that have embarrassed them, and they do not have to take this broad-brush approach to negate that possibility in the future.
Andy Slaughter
Much of the evidence suggests that the public are quite sophisticated about this. They see that all Governments make mistakes, get caught out and have to change their minds. In the end, the public make a judgment about a Government’s overall record. It is quite wrong for Governments to be, as this one is, so thin skinned that any criticism requires not just a response but, effectively, a punishment of the person or body who does the criticising.
What are the consequences of the changes that clause 1 of the Bill makes to the Senior Courts Act 1981, to provide for quashing orders either not to take effect until a specified date or to come into force without any retrospective effect? As has been said, the usual practice is that the quashing order comes into force immediately and operates as if the decision that has been ruled unlawful had always been null and void. Remedies in judicial review are discretionary and will often result in a declaration that the act was unlawful, with remedial action left to the public body. However, when a court decides to issue a quashing order, it is right that the unlawful decision should stand no longer and that those affected should have proper redress. Because a court can make this remedy after finding that a public body acted unlawfully, the quashing order renders the unlawful act null and void; the act never had any legal effect, and therefore its consequences must be unwound.
Whereas quashing orders have hitherto been made by the courts to confirm that a decision by a public body is of no legal effect, the Bill provides that the effect of such orders may be suspended until a prescribed time, potentially subject to conditions—temporarily validating a decision that has been judged unlawful. In deciding whether to suspend an order or make it prospective-only, the courts must have regard to a range of factors, including any detriment to good administration that may arise from its decision. The Bill requires a court that has decided to make a quashing order to suspend the order or to limit its retrospective effect if doing so offers
“adequate redress in relation to the relevant defect”,
unless the court
“sees good reason not to do so.”
Thus clause 1 would limit the effectiveness of quashing orders.
The quashing order is a powerful tool that ensures that unlawful Government decisions can be overturned, and that those who have suffered the consequences can obtain real redress. The courts have the power to suspend the effect of quashing orders, although the power is rarely exercised. Although the case law on this is not absolutely certain, it is reasonable to argue that courts already have this power. Suspension operates like a time lock on the unlawful action, meaning that the court can delay the effect of its ruling and give the public authority time to sort out its mistake. Limiting the retrospective effect ensures that the remedy has effect only on the date that it is made, rather than affecting things that have already been done. If the court suspends the quashing order or makes it prospective-only, things done before the suspension or things done in the past are treated as if they are valid. The current law strikes the right balance in reserving this remedy for exceptionally rare cases.
As I have said, it is important to remember that all remedies in judicial review are discretionary. In exercising their remedial discretion, the courts will consider a range of factors and will take into account the impact of quashing on certainty and the needs of good public administration. Where significant administrative disruption or chaos could result from a quashing order, the courts have the power to issue a declaration instead, and they often do. Often, the court will simply make a finding that a public body has acted unlawfully and leave it to the public body to determine what action should be taken in response to that finding.
Research by the Public Law Project shows that, in challenges to statutory instruments, a declaration rather than a quashing order is the most common remedy following a successful judicial review. That practice shows that the courts deal very well at the moment with all those circumstances, and it calls into question the need for clause 1. In any event, there are already limitations on a court’s ability to grant quashing orders. For example, section 31(2A) of the Senior Courts Act 1981 requires the High Court to refuse a remedy if it appears
“highly likely that the outcome for the applicant would not have been substantially different”
if the public authority had not acted unlawfully, unless there are
“reasons of exceptional public interest.”
Section 31(6) of the same Act also allows the Court to refuse relief on the grounds of undue delay
“if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
Claimants’ access to quashing orders is therefore already strongly regulated. However, an immediate and retrospective quashing order is an important tool for righting injustice and ensuring that the Executive acts only within its legal powers. Combined with the existing controls on quashing orders, the proposed reforms weigh the scales of justice too heavily in favour of the Executive. Prospective-only quashing orders would invalidate an unlawful act only from the point of the court order onward, leaving past conduct, including conduct complained of by the claimant, untouched.
Clause 1 goes significantly further than the recommendations made by IRAL. The IRAL panel recommended legislating for a discretion to make suspended-only quashing orders. It did not recommend legislating for prospective-only quashing orders, and it recommended against a presumption of limiting the effects of a quashing order in this way. Subsection (9) of proposed new section 29A, inserted by clause 1, creates a presumption that these weakened quashing orders “must” be made where to do so would provide “adequate redress”—absent good reasons. Such a presumption not only goes against the Government’s stated intention to provide flexibility for judges, but risks encouraging the use of these new orders in circumstances where it would be unjust and unfair to do so. As the Government acknowledge in their consultation response,
“Presumptions were not recommended by the IRAL Panel and generally met with scepticism from respondents to the consultation.”
However, it does not appear to have had any effect.
Suspended and prospective-only quashing orders undermine the rule of law, which requires that no person should be subject to unlawful action and that individuals have access to an effective judicial remedy against unlawful measures. Article 13 of the European Convention of Human Rights further protects people’s rights to an effective remedy. Although the Bill requires that the court considers whether a provision offers adequate redress before making a suspended or prospective-only quashing order, it does not preclude the possibility of an order being made without adequate redress. We are concerned about the potential for suspended or prospective-only quashing orders to impact third parties affected by an impugned human rights or equality decision and the implications for their ability to access legal aid. It is unclear whether cases likely to result in suspended or prospective-only orders would meet the test of sufficient benefit to the individual, and therefore justify a grant of legal aid.
Most concerning of all is the prospect that either or both types of orders could be mandatory for the judge, as the clause contains an apparent presumption that they will be made where there is “adequate redress”. The Bill does not specify who for, but one of our amendments deals with that. The Bill as it stands will reduce judicial discretion to give an appropriate remedy. I will say more about that later.
Clause 1 risks undermining individuals’ ability to hold the Government to account. The provision could also mean that individuals are found guilty of offences made under unlawful regulation or are unable to be compensated for the impacts of unlawful state action. The point of judicial review is to ensure good decision making by public bodies. It is concerned not with the result in itself, but that the right procedures are followed and that the body is operating within the law. Within the separation of powers that forms our political system, it is an important check by one branch on another, acting in the interests of the public. The Bill does nothing to improve the decision making of public bodies; in many ways it will have the opposite effect. Making challenges harder to bring and remedies less effective may make things easier for Government, but at a cost to the general public.
I will give two or three examples of previous cases. I remind the Committee that the Government’s own election manifesto promised to
“ensure that judicial review is available to protect the rights of the individuals against an overbearing state”
and to secure access to justice for ordinary people—laudable aims. These new remedies will not, however, uphold that promise. I will demonstrate that with a short synopsis of some case studies.
In the case of the British Medical Association, the Health Secretary issued the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019, which tried to introduce a power to suspend or withhold payments of NHS pensions, where an employee had been charged with an offence. There was no right of appeal from that power, and the suspension did not come to an end when the employee was acquitted or where proceedings were withdrawn.
At the time of the case, that power had never been exercised. The British Medical Association brought the case as a matter of principle: that potentially innocent medical staff could be denied a pension simply for being charged with an offence that they did not commit. Finding the regulations to be unlawful, the judge granted a quashing order.
Given that the case did not relate to an actual use of the power or an individual who was a victim of the power, the judge might have regarded a suspended or prospective-only order as adequate, meaning that under the Bill, the judge would have been expected to suspend the effect of the order or make it prospective-only. However, in the time that it took the Health Secretary to consult on the draft and lay new regulations, there would have been nothing to prevent Ministers from exercising the unlawful powers, as doing so would have been valid under proposed new section 29A(3) to (5) of the 1981 Act, which makes otherwise illegal uses of power legal.
Alex Cunningham
My hon. Friend is giving a series of good examples as to why the Government’s proposals are flawed. In his evidence to the Committee on Tuesday, Dr Morgan said:
“I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction.”
He went on:
“I also think, if subsection (9) is taken out, subsection (8) could be taken out as well.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 24, Q23.]
So there is clearly support for the line that my hon. Friend is taking.
Andy Slaughter
I am grateful for that quote from Dr Morgan, which is far more learned and eloquent than anything I can come up with. His evidence was very measured and showed nothing other than looking at the Bill with a fresh pair of eyes. On some of the decisions he supported the Government, and in some cases he could not see any point or purpose.
There is grave concern about the impact of any changes to the law of judicial review on children and young people with special educational needs and their families. Children and young people with special educational needs often rely on legal remedies such as judicial review to ensure that they receive the special educational provision and wider support to which they are legally entitled. Judicial review is an essential remedy in cases where there is no other way that a complaint can be resolved—for example, by complaining directly to the public body concerned or the local government and social care ombudsman. Any changes to the law on judicial review should take account of the particular factors relating to children and young people with special educational needs.
I will give a few examples of situations that arise quite commonly; Members may well have been involved in some such cases. Local authorities may fail to comply with statutory timescales for issuing or amending an education, health and care plan for a child or young person, resulting in the child or young person missing special educational provision or schooling. A local authority may fail to make the provision set out in a child or young person’s EHC plan, resulting in the child or young person missing education; fail to comply with the order of the first-tier tribunal; or decide to stop providing the home-to-school transport to which a child or young person is entitled, meaning that they cannot get to their place of learning. A school governing body may refuse to admit a child or young person despite the school’s being named in the child’s EHC plan, where there has been no formal exclusion. Those are just a few examples of how judicial review can be used to ensure that children and young people receive the special educational provision and support to which they are entitled by law. It is essential that it remains a meaningful option for them and their families.
The measures, if enacted, will weaken the effectiveness of the remedies available to the courts and will deny an essential remedy to children and young people with SEND and their families. The Bill will deter people from using judicial review as a way of righting unlawful decisions by public bodies. Any change to judicial review should encourage access to justice, not limit it. It will also limit claimants’ access to legal redress for unlawful actions, which will take away any accountability of Government or agencies for unlawful action that has already taken place.
I will make some very specific comments on the first group of amendments. The lead amendment is amendment 12, which is the only one I will press to a vote. Amendments 40 and 41 are contingent on amendment 12.
Proposed new section 29A(1)(b) of the Senior Courts Act 1981 allows for quashing orders to be made including provision
“removing or limiting any retrospective effect of the quashing”—
in other words, a prospective-only remedy. For prospective-only orders, despite a state decision or action’s being found unlawful, the order quashing it would be forward-looking, leaving the individual who brought the case without proper redress for what has already happened to them and, potentially, with no change in their circumstances at all.
Proposed new subsections 29A(4) and (5) set out the implications of that change. The decision or act in question is to be treated as valid and
“unimpaired by the relevant defect”,
for all purposes, for the period of time before the prospective effect of the quashing order. As has been expounded countless times by the courts, the rule of law requires that those exercising public power should do so lawfully. However, the Government would be under absolutely no legal duty to address the injustices caused by the unlawful measure, and there would be no scrutiny as to the effectiveness of such remedies. We do not consider that to be an appropriate or principled solution.
In issuing a prospective-only quashing order, the courts would be determining that an unlawful measure should be treated as if it were lawful retrospectively, which is problematic for many reasons. First, it undermines the rule of law, which at its core dictates that all are subject to the law, that no person should be subject to unlawful action, and that individuals have access to an effective judicial remedy against unlawful measures. Prospective-only orders entail a direct rejection of those principles, allowing unlawful executive acts to stand and, therefore, preventing individuals who were previously impacted by them from challenging them. As recognised by the consultation, that could lead to severe unjust outcomes. By introducing prospective-only remedies, the Government are making another concerted effort to insulate themselves from accountability at the cost of those who have been let down by a public body and anybody who may be in the future.
Prospective-only remedies have the potential to create opportunities for injustice in individual cases, to weaken the rule of law and to introduce unnecessary layers of complexity into an already functioning system. This is another example of the Government wasting time and resources on fiddling with an area that works well, while many other areas of the justice system cry out for attention.
Janet Daby
Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.
Andy Slaughter
Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.
In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.
The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.
The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.
Liz Twist (Blaydon) (Lab)
I refer to the evidence submitted by the Independent Provider of Special Education Advice on the impact of the changes on those with special educational needs, highlighting the importance of the ability to appeal at that level. When we look at the effects on individuals and organisations, rather than the dry words, does my hon. Friend agree that this change could have a significant impact on those people who feel that they are not getting justice and are seeking redress?
Andy Slaughter
I am grateful for my hon. Friend’s intervention, and I think she is following my argument. What I am trying to do through a series of case studies—some hypothetical, some that are likely, and some that have actually happened—is look at how those cases could have been different had this piece of legislation been in effect, specifically looking at the effect on individuals. That may be hundreds or thousands of individuals, or it may be one individual, but these are often people for whom this is the only form of redress, and it is hard to see how a prospective-only remedy would provide a just outcome to an individual claimant.
Turning back to the Unison case, it arbitrarily distinguishes between people who have been impacted by the unlawful measure before and after the court judgment, undermining certainty, consistency and equal treatment under the law, which was the point of my hon. Friend the Member for Lewisham East. Individuals who have not litigated but who are impacted by an unlawful measure have just as much need of the law’s protection as those individuals who will potentially be impacted in the future. Some unfortunate people would be denied justice, with no proper remedy even when the court said they were right.
Looking at the position in other jurisdictions, it is notable that courts are usually prepared to hand down a prospective remedy only in cases of constitutional importance, or cases that would have serious economic repercussions for a large number of good-faith relationships. In practice, that happens extremely rarely, and those are very limited categories that have been carefully contained on the basis of subtle judicial reasoning and incremental developments.
The European Court of Human Rights has also held in a very clear judgment that certain remedies which have prospective-only effect cannot be regarded as effective, and therefore would be a violation of article 13 of the European convention on human rights. Judges already have discretion over what remedy to give, but this Bill will increase their focus and attention on limiting the use of full quashing orders and mandate the consideration of factors that undermine successful claimants’ legitimate interests. It will embolden defendants who are found to be on the wrong side of the law to argue that they should not suffer the full consequences of their unlawful actions. Public trust in the system will be undermined where judges are seen to validate or immunise previous unlawful conduct through prospective-only remedies. That, in turn, may disincentivise legal compliance by those in power.
The Government line is that judges are sensible and will strike the correct balance in practice, but that is cold comfort for individual claimants and is not in compliance with international law. In creating a statutory presumption and mandating consideration of these new remedies, judges are being clearly signalled to, and may well be less likely to—and, in fact, may be required not to—award effective remedies for claimants against any common-sense understanding of justice.
The result of limiting retrospective effect would be that a claimant could have the court agree that the decision made by the Government or public body was unlawful, but would not have recourse to a retrospective remedy. That would allow the Government to avoid having to compensate people who are victims of its previous unlawful behaviour. If claimants know at the outset that it is likely that they could win but nothing would happen, why bother going for judicial review at all?
The group that trades under the name Equally Ours, which briefed us, has significant concerns about the likely effect of deterring people from seeking judicial reviews if this clause is unamended. If prospective-only remedies are applied, the effect would be that unlawful decisions or actions would be treated as lawful until the quashing order came into effect. Retrospective quashing orders recognise the unlawful decision or action and provide a remedy.
Bringing a judicial review has many disadvantages to applicants, not least the cost, uncertainty and length of the process. The key motivation for many applicants—for the impact on them to be remedied—will be lost if a prospective-only order is made. With that in mind, it appears likely that the introduction of prospective-only remedies would have a chilling effect upon future potential claimants. With their use not only allowed but encouraged, that sends a strong signal to an individual who has been wronged by a public body that their actions are not worth challenging: even if they win, their situation may not improve.
Paula Barker
I would like to draw my hon. Friend’s attention to the evidence of Louise Whitfield, who stated:
“If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 51, Q72.]
Does my hon. Friend agree that clause 1 seeks to stifle people’s access to justice?
Andy Slaughter
I am grateful for that intervention, and I hope from what I have said, and from many of the interventions by hon. Friends, that it is clear that what we are most concerned about here is the impact on an individual claimant.
Bringing judicial review is not an easy thing to do; it is not a common remedy. Funding it, finding representation and getting into court are all difficult. I hope when the Minister responds—I do not have much more to say before I will allow him to—he will address some of those points, particularly in relation to what he thinks the effect of the measures in clause 1 of the Bill will be on individuals who currently have the ability to bring a successful claim.
As I said, a chilling effect seems likely. If these measures are not only allowed but encouraged, that sends a strong signal to an individual who has been wronged that the actions are not worth challenging. Even if a prospective-only quashing order is not used in a particular case, its mere availability would serve as a serious disincentive to claimants seeking to bring a judicial review if a claimant cannot be sure that they will benefit from the judicial review even if it is successful.
A further financial hurdle could be placed in front of potential claimants as legal aid would likely become even harder to obtain. Applicants for legal aid must be able to demonstrate that there would be a tangible benefit to the litigant if successful. It may become difficult to satisfy this requirement where the litigant stands a high chance of being awarded a prospective-only remedy, meaning that more prospective applicants could be denied legal aid, forcing them to abandon their claim.
With no legal aid and little prospect of benefiting even if successful, there is seemingly little incentive for someone who has been negatively affected by unlawful action to bring a case. Prospective-only remedies would therefore have a serious chilling effect on the system of judicial review, disincentivising bringing a case in such a way. Moreover, they would have a damaging effect on good governance; the threat of judicial review is a powerful tool in encouraging good decision making by public bodies.
As well as depriving proper redress for individual claimants and others who may have been wronged by unlawful decisions, prospective-only remedies also have the potential to cause more general harm. The impact of a prospective-only quashing order and the transition between a measure being valid and then quashed going forward will be difficult and unwieldy to navigate, including for public bodies.
By way of example, it is unclear whether proceedings to pay a penalty notice could be brought against an individual for breach of an unlawful byelaw if the events occurred prior to the byelaw being quashed prospectively but the charges and/or proceedings are brought afterwards. The introduction of prospective-only quashing orders removes the certainty provided by the position that a measure if found to be unlawful will then be treated as such. Laws should be able to guide conduct to enable persons to be able to act in accordance with the law. A position where a measure is both recognised as being unlawful but is also to be treated as if it were lawful is contrary to this.
As one Department said in its submissions to IRAL—from those that we have been able to see—
“the rule of law requires predictable rules around which citizens, businesses and government can plan their activities and lives”.
Prospective-only remedies weaken the rule of law because they allow the Government and public authorities to act without fear of meaningful repercussions. The Government are effectively encouraged to take risks and act unlawfully, and the only consequence is that the decision will eventually be reversed should it be successfully challenged in the future. That undermines Government accountability, and in turn undermines the quality and effectiveness of decision making.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Fourth sitting)
Andy Slaughter ExcerptsThursday 4th November 2021
(3 years ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
James Cartlidge
We will debate the presumption in more detail, because there are a number of amendments to it in the later groups. With the greatest respect for the hon. Lady, I would simply say that that is an erroneous interpretation of the presumption. First, the Bill does bring in those new remedies, irrespective of the presumption, but the presumption is there. It does not force the judge to use them; yes, it highlights the fact that they are there and that we would expect them to be used were it appropriate, but what it ensures is that, whether they are used or not, the reasons and the thinking are written down. In a nutshell, this is about encouraging and expediting the accumulation of jurisprudence, which is incredibly important in a common-law system.
I understand the concern that such orders should not be used to prevent claimants from getting just outcomes. That very point was made on Second Reading by the Chair of the Justice Committee. However, I submit that the clause as drafted already protects against that. The list of factors for the court to consider in using the new remedies, which is set out in subsection (8), includes at paragraph (c) a requirement for the court to have regard to
“the interests or expectations of persons who would benefit from the quashing of the impugned act”.
In other words, it must consider the interests of the person or persons who has brought the judicial review.
In addition, the presumption at subsection (9) requires the court to use the new modifications for quashing orders only where it would offer “adequate redress”. Furthermore, subsection (2) allows the court to impose conditions on any remedy it gives, which is another way that the court can tailor any remedy to ensure it properly serves the interests of justice.
I therefore submit that the ability to limit or remove retrospective effect does have a clear purpose and that there are already sufficient safeguards in the provisions before the Committee to ensure the interests of the claimant are fairly balanced against the interests of good administration. The clause gives the courts the necessary flexibility to tailor its remedies appropriately.
Amendment 35 seeks to remove the subsection that states:
“Provision included in a quashing order under subsection (1) may be made subject to conditions”.
However, the whole point is that the ability to set conditions is very important, so that the court can strike the right balance in how it gives a remedy. For example, to avoid detriment to a claimant or those in the same situation, the court might specify that the defendant cannot take any new action to enforce the impugned decision, but is nevertheless afforded time to amend or correct it by virtue of a suspended quashing order. Removing the court’s ability to set such conditions would not be in the interests of justice or flexibility.
The final two amendments in the group, amendments 40 and 41, were originally connected to amendment 39, which the hon. Member for Hammersmith has withdrawn, and now relate to amendment 12. They are consequential amendments that remove elements of the clause that seek to provide further clarity in respect of the ability to limit or remove the retrospective effect of quashing orders. I agree with the hon. Gentleman that if we were to accept amendment 12, those amendments would logically follow. However, for the reasons I have explained, we do not accept the rationale of amendment 12 and, as such, we also oppose amendments 40 and 41. I urge him to withdraw his amendment.
Andy Slaughter (Hammersmith) (Lab)
Welcome back to the afternoon sitting, Sir Mark. I can reply fairly briefly to this short debate.
The hon. Member for Dudley North said that a power grab by the Government was not what was happening in this Bill. However, whatever language is used, the Bill does alter the balance of power. In that sense, it is a movement of power from the courts to the legislature, for reasons I will explain more under the next group of amendments. He said that it adds powers to the judge’s armoury. Technically that may be true, but if the net effect in reality is to create uncertainty and fewer protections for claimants, that is not a welcome development.
Marco Longhi (Dudley North) (Con)
The hon. Member referred earlier to his leftie lawyers. In describing them in such a way, he is implying that he does not have confidence in these people doing the right thing. What we are doing is giving them the ability to use their discretion.
Andy Slaughter
I think it is actually the senior judiciary, and I would never ascribe any political motivation to them whatsoever. I take the point that the Deputy Prime Minister may well not be a leftie lawyer, but it is the Prime Minister, I think, who coined the phrase rather than me. I do not know who he had in mind exactly; I hope not the former Prime Minister, Lady Thatcher, but there it is. People move around the political spectrum all the time these days.
The main issue I take from what the hon. Member for Dudley North said is that there remains an element of discretion. Up to a point, Lord Copper, is the answer to that. Why have a presumption at all? We are coming on to that debate, so perhaps we went off at a slight tangent a few moments ago, but it is a relevant point to make. If Government Members wish to emphasise the discretion that is available to judges, why are they supporting a clause that inserts conditions?
Andy Slaughter
I beg to move amendment 13, in clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court considers that it is in the interest of justice to do so.”
This amendment would limit the remedies in subsection (1) to where the court considers it is in the interests of justice.
The Chair
With this it will be convenient to consider the following:
Amendment 14, in clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made in exceptional circumstances.”
This amendment would limit the use of the remedies in subsection (1) to exceptional circumstances.
Amendment 19, in clause 1, page 2, line 12, leave out “must” and insert “may”.
This amendment would make clear that the factors which the court considers are a matter for its judgment.
Amendment 32, in clause 1, page 2, line 13, at end insert—
“(aa) any detriment to the environment that would result from exercising or failing to exercise the power;
(ab) whether exercising or failing to exercise the power would constitute an effective remedy for the claimant;”
This amendment would require the court to have regard to any detriment to the environment that would result from the use of any suspended or prospective-only quashing order.
Amendment 36, in clause 1, page 2, leave out lines 14 and 15.
This amendment removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 33, in clause 1, page 2, leave out lines 14 to 22.
This amendment would reduce the requirement to consider non-legal factors in assessing the legality of decisions made.
Amendment 37, in clause 1, page 2, line 17, at end insert “including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.
This amendment would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.
Amendment 38, in clause 1, page 2, line 19, at end insert “which are to be identified by the defendant”.
This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 20, in clause 1, page 2, line 21, leave out “or proposed to be taken”.
This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.
Amendment 21, in clause 1, page 2, line 23, at end insert—
“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”
This amendment would clarify that the principle of good administration includes the need for administration to be lawful.
Amendment 23, in clause 1, page 2, leave out lines 24 to 32 and insert—
“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect.”
The amendment would remove the presumption and insert a precondition of the court’s exercise of the new remedial powers that they would offer an effective remedy to the claimant and any other person material affected by the impugned act.
Amendment 24, in clause 1, page 2, leave out lines 24 to 32 and insert—
“(9) If—
(a) the court is to make a quashing order, and
(b) it appears to the court that an order including provision under subsection (1) would, as a matter of substance, offer an effective remedy to the Claimant and any other person materially affected by the impugned act in relation to the relevant defect, the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”
This amendment would require an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 22, in clause 1, page 2, leave out lines 24 to 32.
This amendment would remove the presumption in favour of using the new remedial powers in clause 1 and protect the discretion of the court.
Amendment 34, in clause 1, page 2, line 27, leave out “adequate redress” and insert “effective remedy to the claimant”.
This amendment would specify that the remedy should be for the claimant.
Amendment 27, in clause 1, page 2, line 29, leave out from “court” to end of line 30 and insert “may exercise the powers in that subsection accordingly”.
This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.
Andy Slaughter
The amendments in this group are principally in my name, although amendment 27 has been tabled by the SNP. They lead on quite conveniently from the short debate we have just had. It is a large group and I intend to speak to all the amendments, although for most of them I can be fairly brief. The common theme is that they propose ways of mitigating the introduction of prospective-only quashing orders, and in some cases suspended quashing orders, which, as I think we have made clear, we do not believe should be in the Bill at all. If they are to be in the Bill, we want to ensure that they are appropriately caveated and mitigated.
However, the crucial amendment here is amendment 22, which would remove the presumption from the Bill. Various Members have commented already on the presumption, which is perhaps the most controversial provision in part 1. I look forward to hearing the Minister justify it, particularly as the comments from the Government side so far have emphasised the retention of discretion. Sir Mark, we will seek a vote on amendment 22 if the Government persist in their support for the presumption.
By way of background—I will be a lot shorter than I was with the first group, because I have already laid out our concerns about clause 1—the rule of law requires compliance with the law, which means that everyone in the state, including public authorities, must act in accordance with the law. Judicial review, as we discussed this morning, is a fundamental way that these rule of law principles are vindicated. If the state does not comply with the law, an individual can bring a case to court in order to force the state to comply with the law.
The current law on remedies in judicial review also vindicates these principles. The default approach is that if the state does something unlawful, that decision will be quashed and have no legal effect. People generally do not bring cases to court for declarations; they bring cases to court to right a wrong, for a tangible result, and to actually achieve something. If I am injured in a car crash, I bring a case so that the court can rule that I am not at fault and so that the judge will award me damages.
As ever, there is nuance, and it is possible that there would be some instances where it would be appropriate for an unlawful action to retain its validity in some way. That was the outcome in the Gallagher case, where the Supreme Court held that ruling a statutory instrument void would introduce a discrepancy in the statutory scheme. This is very much the exception, but it is a course of action open to a judge in making a decision on the remedy to be awarded in judicial review.
However, proposed new section 29A(9) of Senior Courts Act 1981, as set out in clause 1, flips that principle on its head. The new default position will be that where a court issues a quashing order, it must suspend it, or limit any retrospective effect, unless there is a good reason not to. This undermines the rule of law, because judicial decisions are not effective or are less effective.
Consider a hypothetical case where a homelessness charity challenges a decision on the availability of social security benefits. The default remedy will be prospective- only, meaning that those who have missed out on their benefits in the past due to an unlawful action will not be entitled to back pay of those benefits. The remedy will help people in the future, but will do nothing to help those who have already suffered. What is the point in going to court in such a case, when the remedy granted will be of zero help to the applicant?
Proposed new section 29A(9) and (10) contains a presumption in favour of the use of suspended quashing orders and prospective-only quashing orders, which will favour the assurances of the Executive over other important considerations, particularly the impact on claimants and third parties of suspending a quashing order or making it prospective-only. Proposed subsection (9) sets up a presumption in favour of suspended quashing orders or prospective-only remedies. It says, in effect, that if the court considers that if such an order would offer “adequate redress”, it has to make one unless there is a good reason not to. It is a convoluted provision that introduces several steps and several terms that will lead to increased arguments and submissions at the remedy stage of litigation, increasing the costs and length of that litigation to the detriment of parties and the courts. It is also unclear how the subsection accords with the list of factors that courts are directed to consider in proposed subsection (8).
The Lord Chancellor has argued that while we quite rightly have judicial checks on the Executive, they have to be applied
“in a constructive and sensible way which allows the Government to deliver the projects that it’s tasked and mandated by Parliament to do”
and ensures that
“taxpayers’ money is not being squandered because projects are being harpooned.”
That argument is self-contradictory, because it states two quite different things—first, that there ought to be judicial checks on Government, and secondly, that the Government must be allowed to do things they have been mandated by Parliament to do. The whole point of judicial review is to prevent the state from acting unlawfully. The Lord Chancellor’s argument seems to be that even if the state is acting unlawfully, it ought to be allowed to continue to act unlawfully. A presumption in favour of suspending a quashing order is precisely that—permission for the state to continue to act unlawfully. In most cases, the “constructive and sensible” thing to do with an unlawful Government decision is to rule that it has no effect.
Professor Tom Hickman has called proposed new section 29A(9) “muddled” and suggested that it would be best to omit it altogether. Jonathan Morgan, who we heard from earlier this week, welcomed clause 1 generally but also argued that the proposed subsection is wrong. Liberty has said that it is
“entirely opposed to any presumption in favour of suspending a quashing order”.
The Public Law Project’s conclusion is that clause 1
“should be amended to remove the presumption and make clear that remedies should only be restricted in this way in exceptional circumstances.”
Creating a further barrier to getting an effective remedy is wrong in principle. There are already substantial hurdles to citizens bringing a successful judicial review: they have to show standing, get past the preliminary hearing, have the money to pay large legal fees, bring the case very promptly, and then show that a public authority has acted unlawfully. After all that, it is unfair to place another hurdle in their way. Proposed subsection (9) means that even after all those hurdles have been cleared and the court has ruled that the public authority is in the wrong, the presumption is that the effect of the quashing order will be limited. It undermines the principle of legality if the default is that an unlawful action is still valid and that a quashing order ought normally to be suspended or have only prospective effect. The presumption in the subsection ought to be reversed so that it is in favour of quashing orders taking effect immediately.
In its report, the independent review of administrative law did recommend legislating for suspended quashing orders, but it did not presume that such a remedy would be mandatory. The panel suggested that the courts are best placed to develop remedies that work in practice, and that rather than giving judges increased flexibility, imposing this presumption would limit their ability to provide redress to claimants.
Instead of preserving judicial discretion over whether to suspend a quashing order or remove or limit its retrospective effect, proposed new subsection 29A(9) and (10) in clause 1 introduces a statutory presumption in favour of doing so if it would “offer adequate redress”. We are strongly opposed to the statutory presumption. It is a long-established and fundamental principle in judicial review that remedies are discretionary. As no two judicial reviews are the same, it is necessary to ensure that there is a fair outcome that fits the circumstances of the case at hand. The Government’s response to their consultation on their judicial review proposals showed that the overwhelming majority of responses that they received were clearly against the introduction of statutory presumption and in favour of preserving judicial discretion. We are concerned that the Government have chosen to disregard the expertise and opinions of their stakeholders and to push forward with a statutory presumption that has little or no support, particularly as there is no evidence to suggest that without the presumption, the courts would not use the additional remedial tools at their disposal where appropriate.
Sir John Hayes
I have no desire to prolong the hon. Gentleman’s oration, but he says that the statutory presumption has little or no support. The witnesses that we heard from when we first met as a Committee said the exact opposite, however. They said that the reform was necessary because of the change that has occurred to judicial review over time. As I said earlier, this Bill is an attempt to affirm the sovereignty of judicial review by reaffirming its proper purpose. Does the hon. Gentleman discount the views of those expert witnesses when he says that almost no one supports it?
Andy Slaughter
I take the right hon. Gentleman’s point very seriously. We touched on that point this morning, although I know he was not in Committee. I gave a little thumbnail of some of the witnesses and indicated that their views were—as one might expect from senior academics and practitioners—free from bias and prejudice, and what they said was quite interesting and variegated.
If the right hon. Gentleman were talking about suspended quashing orders, I would have some sympathy with him, because I think the balance was probably in favour of those, with some reservations. Even on prospective-only orders, there was a degree of support, and that may be what he is referring to. I thought that there was very limited support for the statutory presumption, however. Some people think it is okay and some wish to go further than what is in the Bill, but I would say that the balance of opinion, in the responses to the previous consultation—let us remember that in addition to IRAL, the Government have had their own consultation—and in the written evidence submitted to the Bill Committee, has been overwhelmingly against the presumption, for some of the reasons that I am giving.
We do not believe that a statutory presumption is in keeping with the Government’s own stated commitment to pursuing incremental change. It is not yet clear in what cases a suspended or prospective-only quashing order would be appropriate, and there remains some apprehension about the possible consequences of those orders. They should, therefore, be used with caution. A statutory presumption could force the court into using these provisions in circumstances in which they would not be appropriate.
Any legislation will lead to debates in court as to the meaning of terms, but it is not justifiable unnecessarily to introduce new processes and concepts for the courts to grapple with. The Government state that proposed new section 29A(9) of the Senior Courts Act 1981 can
“direct and guide the court’s reasoning to certain outcomes in certain circumstances”,
notably, whether remedies under new section 29A(1) can provide adequate redress. However, the courts already seek to craft the most appropriate remedy for the circumstances that are before them. A court will issue a prospective or suspended order if it is the most appropriate remedy. There is no need for a convoluted legislative provision telling the courts to do so.
The presumption also conflicts with the Government’s stated aim of increasing remedial discretion, as it requires particular remedies to be used in certain circumstances. We oppose prospective-only orders for the reasons set out in the earlier debate, but if they are to be used, it should be at the court’s discretion. Suspended orders should also be used only in exceptional circumstances, as determined by the court.
It would greatly undermine the protective constitutional role of judicial review and risk incoherence if proposed new section 29A(9) constrained the courts to issue a suspended order or a prospective-only order when a straightforward quashing order would be more suited to the circumstances of the case. I therefore submit that proposed new section 29A(9) can be removed. In applying the presumption, proposed new section 29A(10) requires the court to
“take into account, in particular”
anything under proposed new section 29A(8)(e). This directs the court to give special consideration to anything that the public body with responsibility for the impugned act, which may or may not be the defendant, has done or says it will do. However, there are difficulties with making a prospective-only quashing order on the basis of statements made, or even undertakings given by the defendant.
First, only the claimant would be able to enforce, if at all, the undertaking or statement, even though others will also be impacted by the defendant’s non-compliance. Further, claimants may not have the funds, ability or resources to bring the case back to court. Secondly, the recourse would only be against the defendant public body, not against other public bodies who have said they would act. Thirdly, in rejecting the introduction of a conditional quashing order, the Government recognised the practical difficulties with deciding whether a condition has been complied with—the same concerns apply equally to court orders made on the basis of public body assurances, including the potential for further protracted and costly litigation.
The courts do already take into account steps that the Executive or Parliament are intending to take or have taken, as well as now being required to by proposed new section 29A(8)(e), and generally accept that the defendant will comply with the court’s ruling on lawfulness. However, it should be for the courts to determine in the circumstances of the case what weight should be given to public body assurances, to ensure that the most appropriate remedy is made, considering the difficulties with relying on assurances. The courts should not be required to preference these assurances at the expense of other considerations, in particular the impact on the claimant and other third parties.
Suspended and prospective quashing orders both have a significant impact on the ability of individuals who have been subject to state wrongdoing to receive a full and timely remedy. Furthermore, they allow, to varying degrees, an act that has been found to be unlawful to remain valid and untouched. The courts must remain alert to the potential impact of these provisions in particular cases, and a statutory presumption would hinder their ability to do so. At a minimum, we believe this presumption must be removed.
Clause 1 stands to weaken the effectiveness of remedies available to the courts. The Government claim that they are giving extra tools to judges—as we heard earlier—but by imposing a presumption in favour of their use, they are in fact restraining the freedom of the courts to rule as they see fit. That is the key point that the Minister needs to answer. This presumption restricts the remedial discretion of the courts and should be removed.
As a less preferable alternative to removing the presumption altogether, our amendment 23 seeks to remove the presumption in proposed new section 29A(9) and insert a precondition of the court’s exercise of the new remedial powers, that they would offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 24—less preferable than both 22 and 23 —leaves the presumption and would require an effective remedy to the claimant and any other person materially affected by the impugned act. The Committee cannot say that we are not trying, at least, to meet the Government halfway on this matter. I have set out a smorgasbord of alternatives, from which the Government can select what they wish.
The phrase “adequate redress” in proposed new section 29A(9)(b) should be amended to “effective remedy” to increase certainty, and it should be made clear that the redress or remedy must be adequate both for the claimant and for any other person affected by the impugned act. The proposed new section 29A(10) should also be removed in its entirety.
With amendments 13 and 14, the power to suspend quashing orders and prospective-only quashing orders would be limited to exceptional circumstances where it is in the interests of justice through an amendment to proposed new section 29A(1). I do not think I need go into any detail on those amendments; they speak for themselves. Again, they are not ideal, but it would be good if in the Bill it was indicated that where these—in our view—undesirable remedies are to be available, that they should be limited to where there are acceptable circumstances or it is in the interests of justice.
Amendment 20 seeks to address the issues caused in proposed new section 29A(8)(e), which states that the court must consider
“any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act”.
I am particularly concerned with the requirement on the courts to consider any action proposed to be taken. This provides little or no legal basis to require the public body to act, especially if only said during submissions and not reflected in the court’s judgment. The reality of public body decision making, Executive action and the legislative timetable is that priorities and policy positions change, and resources and time may have to be diverted. In the meantime, the judicial review claimant and all others adversely impacted by the measure must wait—potentially continuing to be detrimentally impacted—with limited, if any, legal recourse against the defendant or other relevant public body. There is too much uncertainty in the actions a public body proposes to take to form a legal basis for suspending a quashing order or making it prospective-only. Any intentions indicated to the court could change in the light of subsequent developments, leaving those affected potentially without any recourse. The words
"or proposed to be taken”
should be removed from proposed new section 29A(8)(e) so that it refers only to undertakings.
Amendment 36 provides clarity that the principle of good administration includes the need for administration to be lawful. This requires clarification. There are five main reasons why greater recourse to these weakened remedies, and especially any presumption in their favour, should be resisted. I will conclude my comments when I have gone through those five reasons.
First, these remedies place victims of unlawful actions in an unfair position; remedies which are prospective-only may leave individuals without redress at all. Secondly, they insulate Government from scrutiny and make it more difficult for decision makers to be held to account. Prospective-only remedies would be particularly likely to have a chilling effect on individual claimants bringing judicial review claims. Why, as we have already said, would someone spend money, time and effort to challenge an unlawful decision made against them if that decision cannot be rectified in their specific case? The proposed changes risk creating a situation where unlawful actions go unopposed and individuals’ ability to defend their rights against an overbearing state is undermined.
Thirdly, the remedies make it more—rather than less—likely that judges will be forced to enter the political realm. The effect of a suspended or prospective-only quashing order may be to grant legal validity to an action that, on its face, contravenes an Act of Parliament. It creates a judicial fix for an unlawful Government act, when such an action would ordinarily be the exclusive domain of Parliament. Further, when deciding whether to issue a weakened remedy, judges must consider the likely future actions of public bodies, something that judges have previously described as a job they are ill-equipped to undertake. That would be an especially regrettable and ironic consequence when the Government’s avowed aim is to prevent judges stepping into the political realm.
Fourthly, and as senior judges have acknowledged, one of the benefits of the current system of quashing orders is its simplicity. While being presented as a measure that promotes certainty, the new remedies in fact generate significant uncertainty about how they will operate and are likely to result in expensive post-judgment satellite litigation. That uncertainty, together with an increase in costs, will create yet another practical barrier to individual claimants bringing judicial review claims in the first place. Fifthly, proposed new section 29A(5) undermines a person’s right to bring a collateral challenge following an illegal public act. That is a point we will deal with more fully when we come to the third group of amendments.
Andy Slaughter
I am grateful to the hon. Member for Glasgow North East for her comments, and for withdrawing her amendment, which was essentially the same—or would achieve the same effect—as our amendment 22. We will, therefore, push that to a vote in due course.
As far as the Minister’s comments are concerned, I mentioned the administrative chaos point already; I will return to that briefly on clause stand part because, as I think some of his comments conceded, there are ways around this at the moment. My view is that if the courts can find a route to resolve difficulties, they should be left to do that themselves, and there is no need for us to interfere, but that is specifically around suspended orders—I will come back to that.
The Minister calls it semantics or language; well, I agree with him, but I just think our language is better. By that, I mean it is more precise and more familiar: concepts such as “exceptional circumstances”, “the interest of justice” or “effective remedy” more correctly sum up what we are intending to do here, and will be more familiar to the court in applying its jurisdiction. That is also why we wanted to say that good administration must be lawful.
The central point, which the Minister just has not persuaded me on—that is why I will persist with amendment 22—is, “Why is the presumption in there?” I am not at all persuaded by the non-exhaustive list of matters to which the court must have regard in subsection (8) either. They are not well drawn. Whatever the Minister says, he cannot get away from the fact that the presumption is a heavy-handed way to give a steer to the judiciary about how to operate, and it does not actually need to be there at all. He and the Government should trust the judiciary on the presumptions that it wishes to put forward.
There is a simple disagreement here, as sadly must happen sometimes between Government and Opposition. We cannot see any reason or logical argument in favour of the presumption, so we will exercise our right to press amendment 22 to a Division, although I beg to ask leave to withdraw amendment 13.
Amendment, by leave, withdrawn.
Andy Slaughter
I beg to move amendment 16, in clause 1, page 1, line 13, after “subsection (2)” insert “and to subsection (5A)”
See explanatory statement to Amendment 15.
The Chair
With this it will be convenient to discuss the following:
Amendment 17, in clause 1, page 1, line 16, after “subsection (2)” insert “and to subsection (5A)”
See explanatory statement to Amendment 15.
Amendment 18, in clause 1, page 2, line 1, at beginning insert “Subject to subsection (5A),”
See explanatory statement to Amendment 15.
Amendment 15, in clause 1, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsection (4) does not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsection (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss caused to the claimant by the impugned act before the date on which the quashing takes effect.”
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.
Andy Slaughter
This third and final group of amendments deals with one specific point that causes us concern, but it is a matter on which I can be relatively brief. I give notice that, subject to what the Minister has to say, we will seek a vote on amendment 15, which is the substantive amendment.
Proposed new section 29A(5) provides that
“Where…an impugned act is upheld”—
either until the quashing takes effect in respect of a suspended quashing order, or retrospectively in respect of an prospective-only quashing order—
“it is to be treated for all purposes as if its validity and force were, and always had been unimpaired by the relevant defect.”
We have significant concerns about the impact of that provision on collateral challenge, which this group of amendments would address.
Ordinarily, where a court has found a measure unlawful, even if it has not been quashed, it is possible to rely on that finding of unlawfulness in other proceedings—that is called “collateral challenge”. A person who has had to pay a tax under unlawful regulations, for example, would normally be able to bring a claim against HMRC to be refunded the money. However, new section 29A(5) requires an unlawful measure to be treated as lawful. That would preclude relying on the unlawfulness of a measure in other proceedings. That raises the possibility of people being charged with a criminal offence under unlawfully made delegated legislation, for example, but not being able to raise as a defence the fact that the legislation was subsequently found to be unlawful. As IRAL recognised, that position would leave the law in a “radically defective state”. A further subsection should be included to protect collateral challenge and third- party rights and defences where a remedy under new section 29A(1) is ordered.
New section 29A(5) states:
“Where...an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
Imagine if one of the statutory instruments issued by the Health Secretary during the coronavirus crisis, which created imprisonable criminal offences, were declared illegal by a court. If a court granted one of the new remedies, this subsection would make it as though that imprisonment were always legal. A person could therefore not argue as a defence in the magistrates or Crown court that the statutory instrument was invalid, because this subsection requires a judge to pretend that it was valid.
As IRAL noted in paragraph 3.66 of its report:
“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”
We agree and believe that collateral challenges should be expressly preserved in the Bill.
Alex Cunningham (Stockton North) (Lab)
Successive Tory-Lib Dem coalition and Tory Governments have made much of wanting to do away with red tape and simplify the law, but we have seen quite the opposite in practice. Does my hon. Friend agree that the legislation is yet another example of that? The sentences that he has just voiced are perhaps the best illustration of it. There will be all sorts of consequences to these particular measures. They are actually making things more complicated, less clear, and will provoke further litigation in time.
Andy Slaughter
My hon. Friend makes a very good point, and makes it better than I did. When one starts down this tinkering route—as the Government have in the Bill—and starts trying to nudge judges one way, putting in lists of qualifications and conditions with matters that have to be taken into account, altering the time period over which orders will take place, there are bound to be consequences. We have already said that there is likely to be uncertainty and satellite litigation, but genuine harm could also be caused in this way. I agree, as well, about red tape. It is all very well to try to cut through in that way—and it sounds very good when Ministers say it at the Dispatch Box—but unfortunately it leads to tragedies such as Grenfell Tower. Without the protection given by legislation and regulation on issues such as health and safety, the public are put at risk.
Even where a case has been brought and a decision has been found unlawful, the Bill stands to threaten the ability of people to bring collateral challenges. Proposed new section 29A(5) states that when a prospective-only or suspended quashing order has been made, the unlawful act is
“to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect”,
either retrospectively or until the quashing comes into effect. That situation, in which the court pretends that an unlawful decision was valid for a period of time, would appear to inhibit the ability of the person to rely on its unlawfulness in other proceedings. In other words, a person could be arrested under a regulation ruled unlawful by a court, but they would not be able to use that in their defence. The IRAL report quotes Professor David Feldman, whom we heard from, on the “intuitive revulsion” felt against that state of affairs, and concludes:
“We readily acknowledge that the law would be in a radically defective state if such collateral challenges to the validity of administrative action were impossible.”
Clause 1 fails to protect the ability of individuals to rely on the finding of unlawfulness of a measure in other contexts—for example, as a defence to criminal proceedings. A further subsection should be included to protect collateral challenge and third-party rights and defences where a remedy under proposed new section 29A(1) is ordered. The possibility of collateral challenges should be expressly protected by proposed new section 29A(5A), which is what amendment 15 seeks to do by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on.
That is really the only point I need to make on this group of amendments; of course, the other amendments are consequential on amendment 15. I hope that the Minister has taken the point. I ask him, in responding, to say first whether he supports amendment 15; if he cannot, as I say, we will press it to a vote. Would he then accept that this is an issue that needs to be dealt with? It clearly is. It may be unintended, but it is nevertheless a consequence of what the Government have set out to achieve in clause 1. Before the Bill comes back, it really needs to be dealt with.
James Cartlidge
The amendment aims to ensure that illegality of decisions can be relied upon when using the new remedies. I am also responding to amendments 16, 17 and 18, as they are dependent on the adding of proposed new section 29A(5A) and would require courts to consider proposed new section 29A(5A) when considering the effect on validity.
This new addition seeks to address concerns regarding claimants relying on the illegality of rulings as a defence in criminal proceedings or prejudicing their access to compensation. I would argue that we have already factored in such considerations and given the court ability to make special provision in such a case.
I draw the Committee’s attention to clause 1(1), in which proposed new section 29A(8) lists a number of factors that the court should have regard to when considering the use of our new measures. These importantly cover the interests or expectations of persons who would benefit from the quashing. One would presume that the ability to raise a defence would be one such benefit. Fundamentally, proposed new section 29A(8)(f) states,
“any other matter that appears to the court to be relevant”,
ensuring that such factors can be covered in any eventuality
I would argue that the factors listed, or any that the court feels adequate, would be used in good faith to ensure that the rule of law is upheld. Having considered those factors, the court can use its powers by virtue of subsection (2) to add any conditions to its order, for instance that the defendant does not take any further action to enforce the unlawful decision, such as bringing forward criminal proceedings. With the powers in the Bill the court can make clear, to its satisfaction, the precise effects of the order that it makes. That ensures that there is greater flexibility for the courts to arrive at a positive outcome for all those affected.
The list of factors and the ability to add conditions already allow what the hon. Member for Hammersmith is suggesting. Therefore, the amendment would make no useful change to the Bill. I urge him to withdraw it.
Andy Slaughter
The Minister has made my point for me in drawing attention to proposed new section 29A(8) in clause 1, which does not deal with this point other than under the non-exhaustive provision—
“any other matter that appears to the court to be relevant.”
It is too serious and too specific to be left to be casually dealt with in that way. Therefore, I wish to press amendment 15 to a vote.
I would ask the Minister to go back and look at this provision, and whether we need further, specific qualification of the kind that I have outlined that could be introduced at a later stage of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Andy Slaughter
We have had a good debate on the clause and I do not want to try the Committee’s patience by making a long speech. However, I would like to speak about suspended quashing orders, which we have danced around but not really touched on. I will explain why it is more appropriate to do so in this clause stand part debate. While I do not want to give away the denouement of my remarks too soon, our view is that although there are elements on both sides in relation to suspended quashing orders, we do not think, on balance, and certainly given our hostilities to the rest of clause 1, that there was enough in that to preserve clause 1. It is therefore our intention to vote against clause stand part. It depends on what the Minister has to say.
Proposed new section 29A(1)(a) of the Senior Courts Act 1981 allows for the use of suspended quashing orders, which would delay the imposition of a quashing order until a specified date. Up until the date was reached, the unlawful decision or policy would be treated as if it were valid. In the case of suspended orders, the public body would effectively be permitted to continue taking the same approach, despite that approach having been found to be unlawful, until a certain future point in time.
Fundamental to the principle of justice is that if an action of a public body is found to be unlawful, the victim can expect that unlawfulness to be rectified in a timely manner. As it is currently drafted, the clause fails to do that and dilutes the effectiveness of judicial review as a necessary means of holding public bodies accountable for their actions and as a means of offering fair redress to victims. Through the use of suspended quashing orders, judges will be capable of allowing the unlawful conduct that led to the legal case in the first place to remain in effect.
There are some exceptional cases where it may make sense to suspend the effect of a quashing order, when neither immediate quashing nor a declaration of unlawful action seems appropriate. For example, earlier the Minister mentioned the case of Hurley and Moore, where the court found the Secretary of State to have breached his public sector equality duties in making regulations that allowed tuition fees of up to £9,000 without properly assessing the policy’s potential discriminatory impact, but declined to quash the regulations due to the expected logistical difficulties. Instead, the court just issued a declaration.
The report of IRAL, which as we know was established to feed in to the Bill, says of that case:
“As a remedy, a suspended quashing order would have had more teeth. Such an order would have indicated that the Regulations would be quashed within a couple of months of the Court’s judgment unless the Secretary of State in the meantime properly performed his ‘public sector equality duties’ and considered in the light of that exercise whether the Regulations needed to be revised. Such a remedy would have ensured that the Secretary of State was not left free to disregard his statutory duties in regard to the Regulations.”
That may be a legitimate use of this power, but there are concerns that the possibility of making such an order was ruled out by the UK Supreme Court in Ahmed (No. 2), which was also mentioned earlier today. In that case, the court readily concluded that it has the discretion to suspend the effect of an order that it makes. The difficulty was that the court had already made a concrete decision, which held that the provisions were void, and did not want to undermine that decision.
The making of these orders remains at the courts’ discretion, although they have usually declined to do so, on the basis that doing so will often conflict with the fundamental principles of administrative law. It is recognised that there is debate on this point, so clarifying that suspended quashing orders are available is not an illegitimate aim.
Professor Jeff King agrees with the default approach that substantial orders for relief are much better than a declaration only, but he recognises that in exceptional cases it might be justifiable to depart from that presumption. That is why the pragmatic approach of the courts, occasionally issuing declarations in lieu of quashing orders with attendant justification, is defensible in principle as well as evident in practice. This is intuitively correct; if something is unlawful, it ought to be invalid. However, there may be some unusual cases in which a court may feel that a quashing order ought not to be made. The court has the discretion to do that.
For example, if a quashing order would cause what I think the Minister called administrative chaos in a range of public actions, or indeed with many individuals, the court may instead simply make a declaration. Alternatively, it may make a quashing order but suspend its operation, allowing the public authority some time to fix the legal problem itself. That means that the order is made, but there is a delay before it comes into effect. For example—I think we have used this example before—if a quashing order means that the rules on entitlement to social security benefit would be void, the court may suspend the quashing order to allow the Government time to make new rules that do not break the law.
Quashing orders give teeth to the court’s power to vindicate the rights of citizens. The ability to suspend a quashing order is helpful, as it makes a more nuanced remedy available. This avoids a binary choice between simply refusing a remedy and opposing a remedy, which causes administrative problems. Any uncertainties can be clarified by future decisions and not via primary legislation.
We have said already, and I will not go back over old ground, that in any event we are against any presumption in favour of a suspended quashing order. Proposed new section 29A(9) says that if it appears to the court that a suspended quashing order was a matter of substance, offering adequate redress in relation to the relevant case, then it must make one. Again, as has been said before, that was not recommended by IRAL. Imposing a presumption is not handing the judge additional tools, despite what Government Members say; it has the potential to hinder them from making use of the rest of their toolkit, even when it may be more appropriate to do so.
The imposition of the list of factors to which the court must have regard in proposed new section 29A(8) likewise serves to hinder flexibility and discretion still further. It should be noted, that while IRAL did not suggest a presumption, a list of factors also goes against the panel’s report, which said that
“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded”.
While undermining the “flexibility” that the Ministry of Justice has held up as a justification for this measure, suspended quashing orders also have the potential to introduce greater complexity and uncertainty into the currently simple system of quashing orders, and they are likely to give rise to satellite litigation. If the Government are determined to legislate to clarify that courts may suspend the effects of a quashing order, there must not be any presumption in favour of their use.
It is useful to illustrate examples of injustices that might not have been addressed if this clause were in place. In 2015, new Government guidance said that non-religious beliefs could be excluded from religious education curriculums in secondary schools. Three humanist families successfully challenged the guidance, in a groundbreaking judgment that established that non-religious beliefs such as humanism should be treated with equal respect in the curriculum. Had these reforms been in place then, it could have meant that the curriculum would not have had to change for the pupils affected, and justice would not have been served.
To give one other example, in the case of Save Our Surgery Ltd, the claimant was a group dedicated to preventing the closure of a clinic in Leeds that provided surgery to children with serious cardiac problems. The court held that the NHS committee’s decision to authorise the closure was unlawful due to procedural unfairness and omissions of key considerations in the consultation leading to the closure. The decision to close the clinic was quashed and paediatric heart surgeries resumed at the Leeds clinic in early 2013, shortly after the quashing order was granted. In the span of just 12 days in which the clinic was shut for surgeries due to the closure, it was reported by the BBC that 10 seriously ill children were forced to be transferred to other hospitals as far away as Newcastle and Birmingham, causing considerable difficulty to children and parents.
A suspended order could have been granted in this case for two reasons. First, at the time, the Health Secretary was already conducting a full merits test review into the faulty consultation process, which was considering the issues afresh and was set to make new recommendations regarding clinic closures. Given that that second review might still have recommended the closure of the clinic, a suspended order might have been thought appropriate at the time of the report. Secondly, the claimant was neither the actual Leeds clinic, nor a child denied surgery there, so a suspended order might have been adequate redress for the claimant. If a suspended order had been granted, the clinic closure would have been far longer than 12 days, putting more families through those difficulties.
In his speech on Second Reading, the Minister stated that the Bill supports
“very important principle of judicial review”,
namely
“better public administration of the law in the best interests of our constituents.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]
Judicial review is indeed extremely important in upholding high standards of public administration. It is an excellent incentive for public bodies to make decisions lawfully. As the Government submission to IRAL acknowledges, judicial review ensures that
“care is taken to ensure that decisions are robust”,
which “improves the decision”. If claimants are discouraged from bringing legitimate cases, there is a risk that standards of decision making may be lowered as a consequence of these changes.
When deciding whether to issue a weakened remedy or to grant an ordinary quashing order, judges would have to consider the likely future actions of a public body and would have to speculate on what administrative consequences the order would have. It is difficult to see how those judicial assessments are within the judicial expertise and experience. Indeed, some judges have previously described these assessments as a job they are ill-equipped to undertake. That would be especially regrettable and ironic, given the Government’s aim with this Bill.
Despite the Government’s reference to political cases, these remedies will harm the role of individual judges in judicial review, which is to uphold the will of Parliament, ensuring that the public bodies and Government Ministers exercise their powers within the four walls of the empowering statute. If the court issues a prospective-only quashing order, it is effectively saying, “Even though the public authority acted outside the powers granted it, we must pretend that its past action was lawful and we are only going to do something about it going forward.” The power to issue quashing orders that have only prospective effect, or that have limited retrospective effect, is a power that goes well beyond what IRAL recommended. The Government have yet meaningfully to justify with evidence why that additional and more radical proposal was needed.
Andy Slaughter
I have been very restrained with the Minister. He puts his case in a moderate and reasonable way: he believes that the clause will improve not just the armoury of the courts, but their performance. Why does he think that, in bringing judicial review claims, almost every claimant, organisation and practitioner does not think that, but thinks it will hamper them? Would it not be quite perverse if they were saying that without actually believing it from their own experience?
James Cartlidge
I am grateful to the hon. Gentleman. He obviously was not listening to the same experts as I was on Tuesday, when we heard some strong support for the remedies. There is recognition from the experts that the remedies give more flexibility. I have explained the sorts of circumstances in which they may be used, but if they are not appropriate, they will not be used. However, we would at least understand the reasoning. I do not want to put the horse before the Cart, which we are about to come to. [Laughter.] It is a very important matter on which I am sure colleagues want to speak.
Question put, That the clause stand part of the Bill.
Andy Slaughter
I beg to move amendment 43, in clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—
(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;
(b) that party was not of full age or capacity;
(c) the appeal before the First-tier Tribunal was not an in-country appeal;
(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;
(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or
(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”
This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.
The Chair
With this it will be convenient to discuss the following:
Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—
“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—
(i) bad faith, or
(ii) fundamental breach of the principles of natural justice.”
This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.
Amendment 44, in clause 2, page 4, line 8, at end insert—
“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;
an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;
a party is ‘not of full age or capacity’ if that party is—
(a) a child, or
(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)
an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;
‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;
‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;
‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”
This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.
Andy Slaughter
We are making splendid progress. I will again disappoint those who like cliff-hangers by saying right at the beginning what our attitude is towards clause 2. We find it concerning, both of itself and on its own merits. We believe that reversing decisions in Cart, and subjecting Cart judicial reviews to ouster, is wrong on its own merits. We also think, as the Government have perhaps unwisely said, that the clause may serve as a template for further or wider use of the ouster, possibly including in more controversial areas further on. We have an issue of practicality and an issue of principle, and are therefore very likely to vote against the clause.
This short group of amendments is an attempt to improve, ameliorate and mitigate clause 2. Frankly, we found it very difficult. There is very little to recommend in clause 2, unlike in clause 1, where we at least sought to find some imaginative ways of improving it. It is difficult; nevertheless, I will in a little while speak specifically to the amendments that we have tabled. However, I will start as I did with clause 1 by setting the background so that it is clear where we are coming from on the amendments and on the clause as a whole.
An ouster clause is a clause in legislation that seeks to oust the jurisdiction of the courts. The desired effect is that the subject matter of the ouster clause cannot be challenged in the courts. If given effect by the court, this would mean that the decision or action of an official in relation to that subject matter is final and cannot be challenged legally.
Rule of law objections to ouster clauses have often been made in Parliament. For example, in relation to the Justice and Security (Northern Ireland) Act 2007, the Constitution Committee of the House of Lords objected to an ouster clause, stating that
“the Rule of Law is diminished if an aggrieved citizen is barred from challenging an allegedly unlawful decision taken by a public authority.”
It is reasonable to say that ouster clauses are at odds with the rule of law. The orthodox view is therefore that courts will give effect to them only if the statutory language introducing them is absolutely clear. The courts have said:
“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”
In reality, courts are adept at reading even very clear words which purport to establish an ouster clause as not actually having the effect of creating an ouster clause.
The Tribunals, Courts and Enforcement Act 2007 contained an ouster clause relating to decisions of the upper tribunal. The upper tribunal deals with appeals from the administrative appeals chamber, the immigration and asylum chamber, the lands chamber and the tax and chancery chamber. In the case of Cart, the Court of Appeal stated that
“the supervisory jurisdiction of the High Court, well known to Parliament as one of the great historic artefacts of the common law, runs to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language.”
There is no such language in the 2007 Act. The Supreme Court confirmed this approach. This has led to what are known as Cart judicial reviews, whereby a decision of the upper tribunal can be judicially reviewed.
There has been an on-going debate about how effective Cart judicial reviews are in catching errors of law made by the upper tribunal. The Independent Review of Administrative Law panel found that there were errors of law in only 0.22% of cases. The Public Law Project has questioned the empirical evidence for that and suggested that Cart judicial reviews are much more effective, with an actual figure between 2.3% and 9.2%. It is difficult to know what the true figure is, but it is conceded that the 0.22% figure is a significant underestimate. I will say more about this later. However, I felt that that there was a degree of consensus around some of the evidence we heard on Tuesday that the figure was certainly about 3%, and possibly around 5%. I will come on to what I think the significance of figures of that kind may be.
Tom Hunt (Ipswich) (Con)
Whether it is 0.2%, 3% or 5%, we are still talking about a figure at least 10 times lower than the average success for other types of judicial review, which is 40% or 50%. Surely that is a significant point to consider?
Andy Slaughter
I thank the hon. Gentleman for his point. We did hear a number of different figures. I am now stretching my memory to recall exactly who said what. Was it Professor Feldman who said 30% to 50%, and Dr Morgan who posited 5%? I cannot quite remember. However, yes, there are different success rates for different types of judicial review. The point is that, even if the figure is small, Cart judicial reviews are important—I will come on to that more fully. However, if it is 5%, that is not a negligible figure. One in 20 is still a lot of cases. I am going to give some case examples to show the type of case that we are dealing with here. Perhaps the hon. Gentleman will be persuaded that there are sufficient by way of number and variety or that the compelling facts of the cases are such that he would want to retain Cart reviews. We will see.
The Government said they would introduce legislation to reverse the law on Cart judicial reviews. They said that they would seek to widen ouster clauses to other areas, although accepting that they would be rare. They also said they would legislate for modifying quashing orders so that they could be suspended or have limited effect. The proposals announced by the Government appear to be more radical than those envisaged by the independent panel—I think that is true.
The Lord Chancellor recently suggested that there may be more reforms to come on judicial review. His view was that judicial review meant that public money was being squandered, as courts are overturning Government decisions. However, as the commentator Joshua Rozenberg recently put it, commenting on a decision of the Transport Secretary on the Stonehenge case, which I have already referred to today, if the Transport Secretary
“had got it right the first time, taxpayers’ money would not have been squandered.”
Rather than a Minister complaining about a court rectifying unlawful decisions, it would be better to make lawful decisions in the first place.
The clause would take away proper, full judicial oversight in a specific area of public decision making, leaving vulnerable individuals affected by decisions more at risk of injustice. It does so in a way that the Government explicitly state is a test run for other ouster clauses—trying to get rid of judicial oversight in other policy areas. We have been left with a Bill that is bad for claimants bringing cases, disincentivises others who have been wronged bringing their own, fetters discretion while dragging courts into matters of policy, and jettisons a vital safeguard for very little gain. There is nothing in this part of the Bill to help improve the quality of decision making. It simply risks making it worse. The judicial review aspects make up only a small amount of the Bill, but there is very little that we think can be salvaged.
Clause 2 introduces the ouster in respect of decisions of the upper tribunal. That means that some decisions will now be final and cannot be appealed to another court, because the clause would abolish the Cart judicial review. The upper tribunal deals with a host of appeals from various tribunals. The context is the importance of scrutiny and accountability mechanisms to hold public authorities to account.
Cart judicial review is used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights.
Antony Higginbotham (Burnley) (Con)
The hon. Member is making some interesting points about why we need to keep the system as it is, which allows for three bites of the cherry. Will he set out whether he thinks that process should extend to lots of other areas, and has he considered how much that would cost and how much judicial time would be taken up?
Andy Slaughter
I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.
Andy Slaughter
Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.
Antony Higginbotham
I do not think anyone is saying that it does not work. What we are saying is that it is a different process, and we are talking about whether it is efficient and fair for this one cohort of cases to be treated in a very different way. It is not about whether it works or does not work; it is about whether it is the right process and whether we should operate on a consistent basis.
Andy Slaughter
I have said, and I am coming back to the issue, that it is right and just to maintain Cart judicial reviews, but I will come on to the issue of cost shortly and whether that is appropriate. I hope that will answer the hon. Gentleman’s question.
Alex Cunningham
I am glad my hon. Friend is going to get on to costs. In the evidence session earlier this week, the Minister spoke about having the privilege of attending the Lord Chancellor’s swearing in. He said:
“One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time”.––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 30, Q32.]
Should cash get in the way of justice, as it is here?
Andy Slaughter
Everything has a cost—it is a question of whether it is a reasonable cost. Unfortunately, we have seen the justice system of this country and every aspect of the budget of the Ministry of Justice cut more than any other Department in the last few years. Even the much heralded uplifts over the next few years will take us not much further than restoring half of the money that has been cut. I think it sits rather ill in the Government’s mouth to start talking about money, having done so much damage.
There is not an infinite amount of money, although the Government seem to discover various money trees around the place, and it is a legitimate factor to consider. What I am going on to look at is whether, in the case of Cart, the cost is a justifiable cost, either because of the remedy it provides or per se.
As I have said, Cart judicial reviews are used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights. It is usually used in asylum and human rights cases, in which the stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.
In most cases, it is true that these are asylum and human rights cases, but not all of them are. One of our witnesses—Dr Morgan, perhaps—mentioned that Cart itself was not an asylum and immigration case. It would be wrong to categorise Cart judicial reviews as being for asylum and human rights cases. There are others as well.
Clause 2 would severely restrict Cart judicial review. The Government have not made the case for removing this vital safeguard against serious errors in the tribunal system in cases of the utmost importance. With this clause, the Bill would set a precedent for removing certain cases or areas from the scope of judicial review.
The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and the separation of powers. There is simply no evidence that judicial review is currently so prejudicial to good administration that it needs to be significantly restricted, and there was no conclusion to that effect in the Government-sponsored independent review. That is wholly unsurprising. That Governments find judicial review at times to be inconvenient is no justification for attempting to avoid judicial scrutiny, in this or other areas. It is particularly concerning in this specific instance.
The Bill will largely extinguish the power of the High Court to oversee decisions of the upper tribunal relating to permission to appeal first-tier tribunal decisions. This will affect all four chambers of the upper tribunal, and individuals will no longer be able to apply to the High Court. The removal of this safeguard is likely to impact some of the most vulnerable people in the system, taking away their protection from errors made by public authorities. These include refusals of asylum and, where human rights are engaged, decisions to deport someone, including where that person may have lived in this country for much, most or even all of their life.
It is important to understand that removing the normal supervision of the High Court in this area is particularly problematic given the existing constraints in the asylum and immigration system for the tribunal, and in the context of the Nationality and Borders Bill, which threatens to exacerbate those constraints. The danger is that those passing through this system will be at heightened risk of failing to receive a fair and full hearing of any appeal whatsoever. If so, the administrative decision to refuse asylum to, or deport, a person will go without any effective or independent oversight. That will be exponentially harmful, because it will tend to insulate the original administrative decision making from the degree of scrutiny that is necessary to have any prospect of improving and maintaining its quality.
The purpose of judicial review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve that, such as by ensuring access to high-quality legal representation from an early stage in proceedings, or by improving guidance. Instead of reducing need, the Bill simply removes access to Cart judicial review, which allows individuals to challenge decisions to refuse them a right of appeal where those decisions are made unlawfully. Doing so narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart judicial review is a vital remedy of last resort for people subject to unlawful decision making, and should be defended.
Turning to the statistics and costings, unlike prospective-only remedies or a presumption in favour of suspended quashing orders, it is right to say that reversing Cart was a recommendation of the independent review of administrative law. The counter-argument in favour of clause 2 is primarily said to be the cost of Cart cases and the use of valuable judicial resources. The costs of Cart JRs are described as a “disproportionate and unjustified burden” on the system. The Bill’s impact assessment estimates that between 173 and 180 High Court and upper tribunal sitting days will be freed up each year through clause 2, representing savings of between £364,000 and £402,000 a year. That figure is not high—it is less than some Members can pick up in their alternative jobs over a period of a few years—especially when considering the important role of Cart JRs in preventing serious injustice and ensuring that key decisions of the upper tribunal are not insulated from challenge.
A High Court judge can consider at least five applications for Cart judicial review in a single sitting day, an assumption that may be overstating the time taken to consider a single case. That figure of £364,000 to £402,000 is also inflated, because it considers the costs of the upper tribunal rehearing the case. That will occur because an unlawful upper tribunal permission decision has been identified by the High Court, so including those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position cannot be acceptable.
Further, the average number of hours per Cart judicial review in the High Court that the impact assessment provides is 1.3 hours—again, that means up to five Cart JRs per day, which could easily be overestimating the time it takes a High Court judge to consider a single Cart judicial review case. That is especially true because there is a specific streamlined procedure for Cart JRs, which includes that if permission for the Cart JR is granted, unless a substantive hearing on that judicial review is requested, the court will automatically quash the upper tribunal’s refusal of permission. Moreover, that figure is inflated because it includes the cost of the upper tribunal rehearing the appeal in a successful case. That would constitute a cost saving resulting from allowing unlawful decisions to stand: those costs would only be saved because the upper tribunal’s unlawful refusal of permission to appeal was immunised from challenge.
There is already a high threshold for the use of Cart judicial reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart judicial review of a decision must be submitted within 16 days of the initial decision having been sent, instead of the usual three months available in other types of judicial review. Unlike other judicial reviews, there is no right to an oral hearing: Cart judicial reviews are dealt with by paper application only, thus requiring minimal judicial resources.
As we have already touched on, IRAL’s recommendation to reverse Cart judicial review was based on the 0.22% figure, but I think it is now generally accepted that that figure was seriously flawed. The criticism of that figure attracted the support of the Office for Statistics Regulation, and the Government have now accepted it: their own analysis suggests that at least 3.4% of cases are successful, a figure 15 times higher than IRAL originally estimated. However, that figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JR are considerably higher. I know that there are a number of figures flying around, but I think quite a persuasive case was made for the figure of around 5%. I think the variation stems from IRAL’s misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities that mean that they are rarely accurately reported.
Further, the Government’s definition of success does not reflect the purpose of Cart JRs and is unduly narrow. The analysis in the consultation response and impact assessment adopts an unduly narrow definition of success, which artificially deflates the success rate and artificially increases the projected cost savings. The Government define success as not only success in a judicial review, but also a finding in favour of the claimant at a subsequent substantive appeal in the upper tribunal. That is because the Ministry of Justice assumes that a Cart JR is successful if not only the upper tribunal’s refusal of permission to appeal is overturned, but permission to appeal is granted and the appeal against the first-tier tribunal’s decision is allowed.
That excludes all the cases in which Cart judicial review played a vital role in correcting an error of law in the upper tribunal’s refusal of permission to appeal, but the subsequent appeal was dismissed. That is not the normal approach to defining success in judicial review. It ignores the benefit that flows from a case that meets the Cart criteria being heard in the upper tribunal, allowing that more senior tribunal to consider important points of principle or practice and opening up the possibility of appeal to the Court of Appeal, thus preventing the upper tribunal from being insulated from the general courts system.
A Cart judicial review should be regarded as successful if it results in the refusal of permission to appeal being overturned. If we adopt that definition, the success rate is more like 5.5% or 6%, which is some 25 times higher than the IRAL panel thought and means that more than one in 20 cases are successful. That might be regarded as a reasonable and appropriate success rate for challenges to decisions by a senior tribunal, but that view is surely fortified by the nature of the issues at stake.
In any full assessment of the proportionate use of judicial resource, account needs to be taken of the weight of the interests. In the administrative appeals chamber, many appeals concern access to benefits that are designed to prevent destitution and homelessness, or to meet the additional living costs of disabled people. In the immigration and asylum chamber, almost all cases involve asylum and human rights appeals. The potential injustices at stake concern the most fundamental rights and may literally be a matter of life and death. The cases that succeed in a Cart judicial review will also, by definition, involve important points of law or practice, which would otherwise not be considered, or compelling reasons such as the complete breakdown of fair procedure.
Cart JRs have several purposes, including the identification of errors of law in upper tribunal permission decisions where important issues of principle or practice are raised. That will be achieved if the upper tribunal’s refusal of permission to appeal is quashed. The impact assessment states that of a total of 92 cases, out of 1,249 applications, 48 were remitted to the upper tribunal for permission to appeal decisions. That is in the context of immigration Cart JRs for 2018-19, minus cases pending an appeal decision in the upper tribunal. Therefore, based on those figures and a more accurate definition of success, which still does not account for settlement, the success rate is 7.37%—more than double the 3.4% that the Government now rely on, and more than 30 times the original figure cited by IRAL. In addition, there is required to be an arguable case that has a reasonable prospect of success.
In short, the streamlined procedure for Cart judicial reviews, together with the high test for permission in Cart cases, provides a proportionate means of achieving the aim, which the Government commend, of ensuring some overall judicial supervision of the decisions of the upper tribunal in order to guard against the risk that errors of law of real significance slip through the system. An entirely appropriate and proportionate amount of judicial resource is used in identifying and correcting errors of law that would have potentially catastrophic consequences for the individuals concerned.
As I have said, it is not just the number of cases but their nature that is concerning. Many relate to immigration and asylum. Many of the remainder concern access to benefits for the disabled and others facing destitution. The result of these appeals may decide whether someone has the means to live and to be housed, or whether they may be deported, separated from their family and face potential mistreatment, and the Government are not unaware of that.
Alex Cunningham
As we are looking at this whole issue of scrutiny, which is so important, I cannot quite understand why the Government or anybody else would not want greater scrutiny of what they do on a day-to-day basis. Does my hon. Friend understand my feelings on that?
Andy Slaughter
I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.
In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.
I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.
In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.
Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.
Sir John Hayes
The hon. Gentleman must know that only about 3% of these kinds of judicial review succeed, and that the huge number of them, 750 or so a year, are taking up enormous amounts of time. It would be good to have a debate in the House, perhaps even urgently, on the backlog of court cases, as then we can hear him say that he supports our attempt to clear that backlog. Why not have a debate about it on Monday? We can talk about why the Bill is so helpful in dealing with that problem.
Andy Slaughter
I am going to disappoint the right hon. Gentleman by not taking responsibility for this Government’s court backlog, which is continuing, in the Crown court at least, to grow and to which we have precious little solution at the moment. Nor am I going to put the burden of that on to this type of case. The reason why I am going through a few of these case summaries is to show, on their facts, that these are compelling cases.
The right hon. Gentleman could possibly have said 0.22%, which was the figure that the Government sought to rely on. That was a very low figure. I think he said 3.4%, but I think it is higher than that. I think this is a significant number of cases. I also think they are very compelling cases. He may not want to hear the facts of these cases, but to rebut that with the current Crown court backlog—I will put it politely, I think there is an element of non sequitur there. I do not want to get into a big debate about the MOJ’s finances, but I did mention that any extra money that has been put into the MOJ, or will be over the next three years, is a recognition of the ridiculous levels of cuts that have been made since 2010 and does not begin to address them
Sir John Hayes
But by definition, given the success rate, these changes will take out considerably more than 700 cases. That may create room for others, I do not deny that, but it is pretty hard for someone to argue that they want to free up more resources for the courts and then to argue against provisions that do just that.
Andy Slaughter
With respect, it is not. We are talking about a sum of between £300,000 and £400,000. I do not think that will make a material difference to the Crown court backlog. That is partly—mainly—a result of underfunding, but also of mismanagement by this and previous Governments since 2010. Those listening to the debate can make up their own mind about whether that was a sensible rebuttal of the type of cases that, as a result of getting rid of Cart judicial review, will no longer have a remedy—will no longer be able to come before the courts. It is not unique; it does happen and it can be justified, but it is a very serious step to engage an ouster clause. It is for the Government to make that case, and I am sure that, when I finish today, or when we resume next Tuesday, the Minister will try to make the case. To put the onus on the Opposition is, shall we say, chutzpah.
Let me, in the time I have left, go through perhaps just half a dozen cases. I do not want to take up Members’ time, but I do want to put these cases on the record, because I think that this type of case is exactly what we are dealing with and when one hears about the victims and the potential litigants in Cart reviews, that makes a difference to how we regard them.
Jared is a Tamil who had supported the Liberation Tigers of Tamil Eelam as a teenager and was tortured by the Sri Lankan state as a result. His body was covered in more than 100 scars typical of torture methods used by the regime. Despite that, and a country expert report, his appeal was dismissed. Despite his trauma and the risk that he faced on return, he was detained pending removal. He lodged a Cart judicial review challenging how the tribunal had treated the expert evidence supplied in his case. The case was successful before the Court of Appeal, and he was then recognised as a refugee. It was accepted by the Court that he would have been at real risk of further torture and persecution if returned.
SR, a Sri Lankan national, feared persecution, in part because of his involvement in diaspora activities in the UK. His appeal was dismissed by the first-tier tribunal, and he was refused permission to appeal. Following his application for a Cart judicial review, the refusal of permission to appeal was quashed on the grounds that the first-tier tribunal had failed to consider the evidence of the applicant’s diaspora activities in the UK and whether, in light of the evidence and the arguable change in conditions in Sri Lanka since 2013 when the upper tribunal had given country guidance, he would be at risk on return. The upper tribunal found that the first-tier tribunal had made an error of law and decided to hear the case to give new guidance on risk on return for those involved in diaspora activities. Before the hearing in the upper tribunal, the Home Office conceded the appeal, accepting that SR was a refugee. Without the possibility of a Cart judicial review, SR could have been sent to Sri Lanka, where he had a well-founded fear of persecution.
Andy Slaughter
I will in a moment. Under clause 2, that crucial and focused review will be lost, and with it the potential for fundamental injustices to be prevented. I am coming on to talk briefly about amendments 43, 42 and 44, but I will give way.
James Cartlidge
The hon. Gentleman used the phrase “faulty statistical reasoning”. In 2004, when the current shadow Justice Secretary, the right hon. Member for Tottenham (Mr Lammy), was a Minister, he tried to bring forward a similar measure. Can the hon. Member for Hammersmith remind us of the percentage reasoning used to justify that measure at the time?
Andy Slaughter
Along with “bites of the cherry”, I cannot comment on the shadow Justice Secretary’s activities before I was elected to the House. It might be approaching lèse-majesté for me to intrude on that, particularly given that he dealt with it effectively on Second Reading.
James Cartlidge
In a Bill Committee, the statistic that the right hon. Member for Tottenham, as Constitutional Affairs Minister, used to justify getting rid of Cart JR was 3.6%—an incredibly similar statistic, which suggests that there is some merit in that figure.
Andy Slaughter
We have heard every figure from 0.22% up to 9.6%, and some of the experts made the case for it being substantially above 3%. I am making a separate case, however, which is why I wanted to read into the record some of those case summaries of complex cases. They indicate: first, that they are compelling cases; secondly, that there are a significant number, even if they are a minority; and thirdly, that the figures that we are talking about—I wish we could get more accurate figures; perhaps the Minister could go away and help us with that—are likely to be substantially above 3.6%. I know that the Government have moved only that far at the moment, but perhaps they can be persuaded to move a little further.
I fear that I will not finish today, but hon. Members will be pleased to hear that I am near finishing. I will say a few words on what are essentially probing amendments 43, 42 and 44. As I said at the beginning, they are our way of making the best fist of improving clause 2—they are not our finest hour.
We would like to understand why it is proposed to exclude the supervisory jurisdiction of the High Court to consider upper tribunal decisions to refuse permission to appeal, where it is arguable that the statutory appellate process is tainted by bad faith or fundamental breach of natural justice, unless that question is one of bad faith or breach of natural justice by an act of the upper tribunal itself. Clause 2 permits very limited exceptions to the ouster of the High Court’s supervisory jurisdiction over the statutory tribunal appeals system.
Proposed new section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 sets out the limited exceptions. Proposed new section 11A(4)(c) provides for an exception where a question arises as to whether
“the Upper Tribunal is acting or has acted…in bad faith, or…in fundamental breach of the principles of natural justice.”
That restricts the jurisdiction of the High Court when the bad faith or a breach of natural justice is on the part of the upper tribunal in refusing permission to appeal. If, however, the statutory tribunal appellate process has been otherwise tainted by bad faith or a fundamental breach of natural justice, whether before the upper tribunal or in the first-tier tribunal, the High Court’s jurisdiction would continue to be excluded. That might, for example, be on the part of the tribunal below or on the part of a party to the appeal.
Any appeal that is tainted by bad faith or a fundamental breach of natural justice would therefore not fulfil Parliament’s purpose in establishing a statutory appellate tribunal. Therefore, in the interests of both justice and parliamentary sovereignty, any appeal tainted by either of those factors should not be excluded from the supervisory jurisdiction of the High Court. The amendment could expand the current exception in clause 2 to ensure that it applies to any bad faith or fundamental breach of natural justice.
I pause to catch my breath before I go on to amendments 43 and 44, just in case the Chair was about to interrupt me. If not, I will begin. It is unclear what is proposed by clause 2 having regard to the existing and pending limitations of the tribunal system in securing access to justice for appellants before it, particularly in relation to the function of that system as guarantor of the safety and fairness of administrative decisions. The Bill could be amended to provide a further list of exceptions to the ousting of the High Court’s jurisdiction proposed by clause 2. I propose an amendment that gives examples of circumstances in which there must be special concern about the capacity of the first-tier tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Fifth sitting)
Andy Slaughter ExcerptsTuesday 9th November 2021
(2 years, 12 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
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.
Janet Daby (Lewisham East) (Lab)
I am also inspired to speak in this debate. I think that I would be doing my constituents an injustice if I were not to say something on this really important issue. I give credit to the hon. Member for Glasgow North East, who tried to give more of a human approach, through the experience of the person who went through the court proceedings to do with Venezuela. I appreciate her attempt to do that, although it was not very well received by Government Members.
I just want to share a few things. I do not come from a legal background, but I do come from a social care background, and I have worked with refugees and asylum seekers in the past. People may or may not be aware of some of the really abusive situations that they face when they are travelling from their country of origin and try to find passage over here. Some of the stories that I am aware of involving young people and children, although the clause is not necessarily about children, are absolutely horrific. People are raped, abused and threatened at gunpoint to be silent. It is very disturbing to hear of those cases. When there is not enough evidence, or evidence is not being received properly, during the first court hearing and the second, but it is found, during the third hearing, that actually there is a clearer understanding and a clarity that then would go on to save somebody from suffering a level of persecution if they were returned to their country of origin, I think that is worth while.
I do not want to take up too much time, but I will briefly talk about just one case that I happened to work on when I was working as a social worker. It involved a person who was seeking political asylum at the time. He went through the process three times and eventually received status in this country. But on one occasion, his parent was very ill and on the brink of death, so he decided to go back to his country of origin. I am not going to name names or countries, because of confidentiality, but he went back to that country to try to see his mother. Then his wife frantically came to me to say, “He hasn’t returned home on his flight. He’s been missing for two days. Can you help?” At the time, I did not know what to do to help, but I contacted the embassy, and the embassy contacted the country, and found out this person’s identity and that he had been put in prison. It was almost as if the keys had been thrown away because they realised who he was. After the contact that I was able to make with the Government, they were able to put him on a flight back, because somebody showed some care in his situation.
My point is that we are talking about human beings and human lives. We are talking about saving people from persecution and death if they return to certain countries of origin. I am talking specifically about asylum seekers and people who need refuge in our country.
Andy Slaughter
We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.
As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?
Sir John Hayes
I do not want to prolong the hon. Gentleman’s peroration except to say that a third argument has been made, which relates to the integrity of judicial review per se. When only 3% of Cart cases are successful—20-odd cases out of 750—the very integrity of the system is undermined. Notwithstanding the backlog, surely he accepts that it is important that we reform something that is clearly going badly wrong.
Andy Slaughter
I do not accept that as a separate point. I understand that that has been the thrust of the right hon. Gentleman’s argument in Committee, but it is a criticism of his own Government rather than my approach. In my view, the Bill does not go far enough and does not approach judicial review in sufficiently robust or constitutional terms; rather, it is taking what we have described as a tit-for-tat approach. However, we are where we are with the Bill. That is a matter that he must take up with his own side. I will talk about the 5%, but I do not want to say any more about the backlog. It is an incredibly important issue, and I look forward to the debate on that resuming, but frankly it is irrelevant to our proceedings, and it is a stretch to introduce it.
On the matter of cherries, this has been characterised as simply an immigration matter. Most Cart judicial reviews are of immigration cases; that is important in terms of the consequences, but it is not solely about those cases. If one listened to what Government Back Benchers say, one would think it was solely about that, but as has been said several times, Cart was not an immigration case. This form of judicial review applies to upper tribunal cases, regardless of whether they are immigration cases. That needs to be on the record.
I was looking yesterday at written evidence from Justice on the cherry point—other Members may have seen it as well. It is brief so I will read it, because Justice puts in better than I could, and I think we probably need to take this head on. Justice says:
“Cart JRs are not about having a ‘third bite at the cherry.’ There is also an important wider public interest at stake. Cart JRs prevent the UT from becoming insulated from review, by ensuring that there is a means by which errors of law, which could have very significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Philips said, Cart JRs ‘guard against the risk that errors of law of real significance slip through the system’. UT judges are specialists in their field, however as Lady Hale recognised ‘no-one is infallible’. Cart JRs mitigate against the risk of erroneous or outmoded constructions being perpetuated within the tribunals system, with the UT continuing to follow erroneous precedent that itself, or a higher court has set.
The Cart JR cases that succeed will involve either (i) an important point of principle or practice, which would not otherwise be considered; or (ii) some other compelling reason, such as a wholesale collapse of fair procedure. These are the second-tier appeals conditions that were set as a threshold by the Supreme Court in Cart, and are now in the Civil Procedure Rules, for a Cart JR to be considered. The Supreme Court sought to address the most significant injustices while making efficient use of judicial resources. It was in fact the Supreme Court’s intention that few Cart JRs would be successful, but those that were would be the most egregious and important cases with serious errors of law.
Due to the second-tier appeals conditions, Cart JRs involve only the most serious errors of law. If a Cart JR is successful, it will mean that the applicant had not been given a lawful ‘proper first bite of the cherry’ in appealing a decision to the FTT, and the UT had unlawfully refused permission to appeal the unlawfulness. Cart JRs also do not in any way determine the claimant’s substantive case, or whether the claimant should be allowed permission to appeal—this is for the UT to decide following a successful Cart JR.
It is also wrong and, as described by Lady Hale in Cart, a ‘constitutional solecism’ that since Parliament designated the UT as a ‘superior court of record’ Parliament excluded any possibility of judicial review. The decision in Cart did not involve the interpretation of any statutory provision that could be described as an ouster clause, and statutorily designating a body as a superior court of record, as Laws L.J. pointed out at first instance, ‘says nothing on its face about judicial review’.”
That is all I want to say about cherries this morning, but I think we have been led into the orchard erroneously on that point.
The Minister quoted one or two Supreme Court members. I could quote a number in aid of my submissions, but I will limit myself to three different types of advocate who would not always support Cart cases specifically. One, whom I think I mentioned on Second Reading, is Lord Neuberger, a former President of the Supreme Court. He said only a couple of weeks ago that it is “always worth remembering” that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected. Ouster clauses, for example, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity.”
One of our witnesses was Professor Feldman, who gave a balanced account of his view of the Bill. He said during our evidence session on this matter that
“I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 25, Q24.]
Dr Johnson
The hon. Gentleman is making an argument about the importance of being able to review almost any decision. He said he accepts that judicial review in normal circumstances is looking at Government administrative decisions, and that is what it was set up for, yet in this particular case—the Cart case—it is reviewing a judicial decision. Will the hon. Gentleman therefore clarify whether it is his position and that of the Opposition that all judicial decisions made at this level should be subject to review, and that this third bite of the cherry, as the Minister has said, should not be open only to those undertaking immigration cases? As his hon. Friend the Member for Lewisham East said, those are serious and important cases, but other cases going through the courts also have serious and profound consequences for those taking part in them. Should everybody be able to review a decision that has been made at High Court level?
Andy Slaughter
The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.
A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.
Andy Slaughter
It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.
Dr Johnson
I am sorry if my question was not clear, but I have not really had an answer to it. Do the Opposition believe that all judicial decisions made at upper tribunal or superior court of record level should be subject to review in the way that the Cart JR provides specifically for immigration cases?
Andy Slaughter
We have explored at some length the effect of Cart as it operates at the moment, but I have not heard from the Government how they think those cases should be addressed, other than saying, “Well, every system has its losers and we will just have to live with the consequences of that,” either because of the financial cost or for some other reason.
Dr Johnson
Again, I am sorry if I am not explaining my question clearly, but does the hon. Gentleman believe that all people who take a case to court, perhaps with profound consequences on their lives, should have that third bite of the cherry? Is he arguing for all decisions to have judicial review, or does he believe that cases in the Cart—that is to say immigration cases—should specifically get an extra third bite that others do not get?
Andy Slaughter
I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.
I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:
“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”
That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that
“even a single case can have wide ramifications.”
If that applies to judicial review more widely, why does it not also apply in Cart cases?
Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.
Anne McLaughlin
I am told it will be a great pleasure to serve under your chairmanship, Mr Rosindell. I am sure it will be.
As I often say in this place, we never know who is watching. We probably do not have a huge audience watching this debate, and I understand it is going out in audio only at the moment, unless that has been fixed. However, some people will be listening or watching, so it is worth repeating exactly what is happening here so that lay people understand. I will briefly go over it.
If an individual feels that a public body—for example, their local NHS, the Department for Work and Pensions or the Home Office—has failed to correctly apply the law in making a decision about their case, they can appeal to the first-tier tribunal. If that finds against them and the individual believes that there is an error of law, perhaps by overlooking vital evidence or by misinterpreting the rules, they can apply to the first-tier tribunal for permission to appeal at the upper tribunal. If the upper tribunal refuses to appeal the decision, right now that person can ask to have the decision judicially reviewed.
All sorts of criteria have to be met. Someone does not simply say, “Can I have a judicial review?” and get it, but right now they can at least apply. What we are discussing today—clause 2—would take that right away from them. There has been talk about how many bites of the cherry someone can have, but only the tribunal system is having the independent oversight of judicial review removed. All other judicial reviews will continue, and the Minister said that in his speech. I am not sure that is something to be proud of, because we know that the tribunal system often deals with the least powerful in our society. That is who we are removing the access and the right to justice from.
As the Law Society of Scotland has pointed out, decisions on appeal at the tribunal are often taken by a single judge based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, nor to answer any questions that the judge might have. In the last week, we have heard all sorts of arguments about how the powerful—in other words, MPs—have to have more opportunities to plead their case. In terms of the Committee on Standards, a huge number of Conservative MPs talked about how the case was decided on the paperwork, which it was not—that is not quite true—but a lot of the evidence was considered in writing alone, which is somehow wrong when it comes to powerful MPs, but right when it comes to people in vulnerable positions. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.
The Immigration Law Practitioners Association collated 57 real-life case studies of people who had accessed the right that they will no longer have once this legislation is passed. The case studies included a child who applied to remain in the UK in order to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions whereby, if deported—we have talked about the man who witnessed a murder in Venezuela—their lives would be at risk or they would be separated from their family. If we go ahead with this measure, that is what would happen, and I do not know how anybody here in Committee can justify that.
It is important to explain for anybody not au fait with the legal system that we have different layers of decision making because sometimes decision makers get it wrong. I will give a couple of examples. I sat on the Committee that considered the Nationality and Borders Bill, so I was not here for the first sitting of this Committee. I was astonished to read that a member of this Committee asked why any judge’s decision should be questioned. A fundamental part of our justice system is that we accept that decision makers, including judges, get it wrong and have to be questioned.
The justification given by the Government for ousting Cart and Eba in Scotland is the high volume of applications versus the real number of successful outcomes. Let us look at that. The evidence to support that position was so flawed that the Office for Statistics Regulation launched an investigation. It found that the real success rate was at least 15 times higher than the Government’s figures. Why did they use those figures in the first place? Was it because they knew that if people understood just how many people it does affect, they might have less sympathy with their position?
Nick Fletcher
I think the hon. Lady has heard from the Government Benches many, many times that the majority of these cases are about immigration. When Labour Members have been asked how many bites at the cherry they want, we have never once had an answer. Would she like to come back on that? I assume not.
Andy Slaughter
If the hon. Gentleman is seeking an intervention, I will provide him with one. The hon. Member for Ipswich said that Cart cases were a small number of cases, and even if they were justifiable, mistakes happen. I do not agree with that, but he made the point. I think, with respect, that the hon. Member for Don Valley is saying that it would be a good thing if cases that were unlawful were covered by the ouster, which is about preventing judicial scrutiny. In Cart cases, whether free, 7% or 5%, those cases were unlawful. It is not that we are not prepared to put the resource in and do not believe we should prioritise that type of case. I want to be clear about this. Is he saying that it is good if we introduce the ouster in Cart because that will mean that cases where an unlawful act has taken place will still not be decided and that deportation, or whatever he wishes to see, will happen, contrary to law? From the once party of law and order, that does not sound right to me.
Nick Fletcher
I thank the hon. Gentleman for his intervention but I believe, in all fairness, that he has reiterated what I said before, and my reply would be exactly the same. How many times do we have to keep coming back to this? It is the same thing. It is about the majority of immigration cases. We seem to be batting back and forth with this, but Opposition Members are not coming up with the answers that I am asking for, either.
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.
James Cartlidge
I will take one more intervention from the Opposition, and then another from my right hon. Friend.
Andy Slaughter
I am not going to speak for my right hon. Friend the Member for Tottenham, who is better able to speak for himself. Let us imagine that the Minister was correct, and that that was an error. Why have the Government not learned from that? Why are they coming here to make the same mistake again, in the same terms?
James Cartlidge
The hon. Gentleman does not want to answer, because he knows he cannot defend it. He cannot answer the point. If he thinks it right that in order to find these few cases of legal merit, someone should have three bites at the cherry, why does he not apply that to all other areas of law? He either thinks it should be applied, in which case, clearly, we would be gumming up the courts with a much greater burden of pressure, which would make clearing the backlog completely impossible; or he thinks that immigration and asylum is an exception. You cannot have it both ways.
James Cartlidge
I am not giving way to the hon. Gentleman again. I give way to my right hon. Friend.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Sixth sitting)
Andy Slaughter ExcerptsTuesday 9th November 2021
(2 years, 12 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
Alex Cunningham
I am glad the Minister is pleased. The amendment would mandate the Secretary of State to commission and lay before Parliament an independent review of the potential impact of the AOCSSP on defendants and the criminal justice system, its efficacy and operational issues.
I have spoken at some length about the numerous concerns raised about the procedure, and sought the Minister’s reassurance on many of them. The most appropriate form of reassurance would be an independent report into the impact of the procedure. The procedure marks quite a significant shift in the way we handle criminal cases and would establish the principle for all summary and non-imprisonable offences to be automated through an online plea, conviction and penalty website. The Opposition recognise the need to explore how we can deploy technology in the criminal justice system, but we do not agree that it can be done without a robust evidence base, especially when we are dealing with changes that potentially pose a threat to defendants’ rights, access to justice and the principle of open justice.
As JUSTICE has noted, the evidence base for the procedure is poor and none of the reports that the Government refer to in the Bill documents—Sir Robin Auld’s 2001 “Review of the Criminal Courts”, Sir Brian Leveson’s 2015 “Review of Efficiency in Criminal Proceedings” and the Government’s own 2016 consultation, “Transforming our Justice System”—explores the real world consequences and risks inherent in the procedure. Furthermore, the 2016 Green Paper, in which the Government first proposed the introduction of an online conviction system, stated that the system should be using three offences before any decision was taken to make it permanent. It noted:
“We propose to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme, which would be: Railway fare evasion; Tram fare evasion; Possession of unlicensed rod and line. If this initial phase is successful, we plan to bring other offences, particularly certain road traffic offences, into the system in future.”
Andy Slaughter (Hammersmith) (Lab)
It does seem to be a bit of a feature of this Bill. When we were dealing with clause 2, we heard that the abolition of the Cart judicial review was to be a template for other offences, and the same is happening here. Does my hon. Friend agree with me that it is slippery slope? [Interruption.] I hear the Minister snorting from a sedentary position—
Andy Slaughter
Even with the offences my hon. Friend has named so far—offences in which honesty is a factor—it is very important that the questions that he is asking are answered before we approve the Bill, especially if we are to get the number of offences increased through secondary legislation.
Alex Cunningham
My hon. Friend is entirely correct. That is why we have tabled the amendment, which would require data and proper research to be conducted, so the Government have something by which to measure their success or otherwise in introducing the procedure. My real concern is that future offences may well just come through the secondary legislation route, where the amount of scrutiny is somewhat limited. The Government propose using the procedure in the Bill initially for these offences, but nothing in the Bill suggests that the testing procedure the Government committed to in 2016 will actually be used to assess the procedure. Can the Minister confirm otherwise? That would be welcome.
As Transform Justice has pointed out, there is no evidence in the public domain about the online motoring conviction system, which was introduced in 2015. There is no public access to the postal charge paperwork, nor to the online form. There is no public data on how many people respond to the postal charge—we covered that point already—or how many complete the form online. There is also no data on how many people plead guilty or not guilty, or on the sanctions received.
The Government consulted on the automatic online conviction proposal in 2016, and many of the respondents raised concerns. None have been allayed in the interim. Indeed, the single justice procedure, which the procedure builds on, had only been in use for one year when the Government consulted on the online procedure. Since then, much more information about the workings and indeed failings of the single justice procedure has come to light. The Government have not explained how the current issues with the single justice procedure would not simply translate across to the AOCSSP procedure, or even be exacerbated, given the removal of any human oversight. JUSTICE has also said that it is not aware of any similar system deployed in other jurisdictions from which any advantages or disadvantages could be studied.
For those reasons, the Opposition believe that amendment 45 is vital. Significant changes to our justice system should be evidence based, and making evidence-based decisions now will save the Government and the justice system a lot of problems further down the line. I appreciate that I have sought rather a lot of information from the Minister thus far, but we are very keen that we go down the route where we get it right. I look forward to hearing the Minister’s thoughts.
James Cartlidge
It is a 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?
Andy Slaughter
I will be brief, Sir Mark. This has been a very interesting debate, and my hon. Friend the Member for Stockton North has put forward some points that the Minister has engaged with. I am not sure that we are entirely happy with the responses. Disposing of matters online, without going to court, is a significantly different way to do things and makes a lot of differences. Some of the examples that my hon. Friend gave included the ability to get advice, the ability to monitor the quality of proceedings—including the way that the prosecution puts its case—the accountability of the defendant, and justice being done in public. Yes, it is more convenient in some cases to be able to deal with everything online in the way that most of our lives are dealt with now, but criminal proceedings are an important event. There are now many fewer courts than there were, but the process of going to court and appearing there is significant. It concentrates the mind, and it is an event. It frames the offence, and it makes the defendant think about the consequences of their actions.
What most concerns me is the point about open justice, which is very easy to lose. I am conscious that this afternoon the Justice Committee is taking evidence on the issue in relation to an inquiry done by the Bureau of Investigative Journalism in which it tried to attend possession proceedings, which are ordinary in-chambers proceedings that go on every day in dozens of civil courts around the country. On a number of occasions, it was wrongly refused permission to proceed by the judge or the administrative clerk of the court, which is an increasing trend. It has been exacerbated by covid, because clearly much more has been done remotely during the pandemic. That may have been necessary, but when were are making changes to procedure, it is important not to throw the baby out with the bathwater. It is important not only that justice is done, but that it is seen to be done.
I am not persuaded that the clause has been sufficiently thought through at the moment. Therefore, I will listen to what the Minister and my hon. Friend may say in relation to that, but although the Government are aware of, and concede, the points that have been made, I do not think they have done enough to put safeguards in place. At the moment, I feel that we are not sufficiently reassured about the clause.
Nick Fletcher (Don Valley) (Con)
It is a pleasure to serve under your chairmanship, Sir Mark.
I will move on from what I said this morning about dealing with my constituents. Again, I go back to what people say to me about these things on a daily and weekly basis: the law is only any good if it is enforced. The one thing that people see time and again is that somebody is caught in the act of doing something, yet it can take months to get them to court and to get them dealt with. That is bad for two reasons: it says a negative thing to law-abiding citizens, but it also means that charges are held over somebody’s head for a long time, which is no good. It is no good for people to have cases hanging over them. Punishment should be quick, cases should be dealt with, and people should move on very quickly, especially with small misdemeanours. The whole point of the clause is to clear the backlog in the courts. I have mentioned fly tipping, which is a real issue, and I know there have been backlogs with getting such offenders into court and dealing with them. The clause will expediate the court process and get swift justice to those who need it.
Before I was elected to this place, I got paid when I turned up to work. Other Members have referred to builders, plumbers and electricians, who do not have the luxury that a lot of people have. If they do not turn up for work, they can lose a day’s pay, which can be hugely costly to them, especially in these times. If they have made a small error, being able to deal with it very quickly online, maybe when they get in in the evening—saving them a day in court, which would increase anxiety for people—will be welcomed.
Andy Slaughter
Listening to this debate, I am reminded that I was on the Bill Committee when the SJP was first introduced. A lot of these concerns were raised at the time and the fact that we are still talking about them now means that there is some way to go. It should also make us wary about further innovations that could compromise justice being done openly, as happened before.
I mentioned the investigation today and it has provoked the Master of the Rolls to write to all civil judges to remind them about the importance of allowing media access. Recently, we have seen the head of the family division taking very important strides to open up family courts, which have often been a closed book for so long.
We should be doing more to encourage open justice and therefore I think we should be aware of these issues. I fully support what my hon. Friend has said in relation to these matters and his caution, even if he trusts the Minister more than I do.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Seventh sitting)
Andy Slaughter ExcerptsTuesday 16th November 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 November 2021 - (16 Nov 2021)
Sir John Hayes
I was delighted to hear that in his earlier life the Minister was a kind of Wemmick figure to Mr Jaggers before his expectations were even greater and he came here. His account of carrying papers around the courts perhaps prepared him for the immense amounts of paperwork that one deals with as a member of the Government, from my memory of it. However, I could not disagree with him more on this part of the Bill, for three reasons.
The first is accessibility. There are profound problems with moving what was previously a personal connection or a written connection with any organisation or body to an online one. It is particularly disadvantageous for vulnerable groups, including people with learning difficulties, people with mental health problems, people with particular disabilities such as hearing loss, and the unsighted. The hon. Member for Stockton North mentioned the elderly too, and the Minister acknowledged that point in respect of his own parents, who he said were not as switched on to these matters as he doubtless is.
There are other issues too, such as security and confidentiality. There is an immense myth. I know that from having been in the IT industry and having been Security Minister. The combination of those experiences taught me a long time ago that online procedures and processes are very hard to secure beyond doubt, so I have great doubts about whether confidentiality can be maintained as it can by more conventional means.
Fundamentally, my problem is one of community. We have to ask in what kind of place we want to live, and how we want to conduct our lives. That applies to our work in Parliament, to the exercise of the law, and to business, as the hon. Member for Stockton North said. Personal interaction and the intimacy associated with face-to-face engagement are critical to framing and affirming our sense of community and connection with others. The more remote and anonymous we make that engagement, the more we will undermine that sense of what we share, so I have profound doubts about the whole move to online government, as I mentioned earlier.
The Minister is being extremely adroit in his handling of the Committee; indeed, I sent him a note to say how deftly he handled my earlier inquiries. I do not mean to patronise him, but I think he can be very proud of his performance. I have been in that seat many times, as he knows, and I know how tough it is. However, when I raised these matters previously he suggested—slightly untypically and rather clumsily—that I was regressive. He must know that the very concept of progress is suspect, because believing in progress means believing in a destination—a pre-ordained destination towards which we are all hurtling.
In truth, of course, that is profoundly philosophically unsound. I can only assume that, standing there under those dreadful Whigs in Gladstone’s Cabinet, the Minister has adopted the Whig theory of history that we are all merely actors who are acting out a script written for us by some other power. There is nothing regressive about my remark; there is perhaps something human about it. I want more politics on a human scale; I want it to be safe, secure and accessible to all, and I want it to affirm our sense of community and build on what we share.
For all those reasons, I seek extremely profound reassurances from the Minister—of the kind that he has offered previously, in the spirit that I recommended a few moments ago—that my constituents, particularly the most vulnerable, will not be disadvantaged by the legislation. The hon. Member for Stockton North alluded to geography. Well, some people in rural areas such as South Holland and The Deepings are not yet “online”, and I am sure that that applies to constituencies represented by Members on both sides of the Committee. I do not want those people to be at a disadvantage.
The Minister is right that during the pandemic we had to make do, and that did have some beneficial effects: it forced us to think about how we could perhaps do things more efficiently. In the end, however, I was desperate to get back to the business of meeting my constituents face to face, and of debating and engaging in person with colleagues in Parliament. I am sure that that applies to most right hon. and hon. Members in this House. Let us not hurtle down the road to moving everything online, only to look back in years to come and think, “My goodness! What have we done and what have we lost?”
Andy Slaughter (Hammersmith) (Lab)
I shall be brief. I felt half invited by the Minister to respond, but I will not tell a whole war story from the courts, as we used to do on the Justice Committee. I commiserate with him for his treatment by the Royal Courts of Justice; it is nothing personal that the windows are being shut in his face.
I will shock the Committee again: I agree with the right hon. Member for South Holland and The Deepings. I am afraid that I am one of those people who still carries large amounts of paper around and cannot quite manage otherwise. That is possibly why it is good that I am not a practitioner any longer: the courts have adapted quite well to new technology—practitioners, the judiciary and the senior judiciary in particular are extremely adroit in that respect. I agree entirely with my hon. Friend the Member for Stockton North that we have in common with the Government the intention to ensure that things are done as efficiently, quickly and economically as possible. I entirely agree that new technology has a big role to play in all that.
The Committee may hear a “but” coming. The “but” is that there are several ways, but two in particular, in which we must be very wary. First, there is the issue of access. We have all had to learn to deal with new technology, and an example of that is how we advanced our ability to do so under the stresses of covid. Zooming is as common to us now as face-to-face meetings.
Sir John Hayes
It is a mark of both the sense and sensibility of the scrutiny of the Committee that the hon. Gentleman should be defending the Minister and the Government’s position from my mild but profound attack. It is a good Committee where that kind of communion, if I may put it that way, can be enjoyed.
Andy Slaughter
I am going to impress the right hon. Gentleman even more in a moment by making a 180° turn and joining his critique of the Minister.
There may well be times when Zooming is more efficient and appropriate, but there will be many times when face-to-face meetings are more appropriate, including meetings with constituents. During the long debates that we had on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I cautioned many times that it moved too quickly to exclude people from the system in the name of efficiency. There is a danger that we will do that here.
The Minister fairly said that we must proceed with caution and be aware of some people’s digital limitations. It is easy to say that, but it is more difficult to ensure that it happens, because the same people who struggle with matters online are those who cannot make their voices heard, and they just disappear from the system. We have excluded people even though it was not intentional.
A second important category—coroners—was touched on. I will not say much now because I expect that we shall come on to the plans to move those online when we come to that section. The Minister will remember that Mr Rebello, senior coroner for the Liverpool and Wirral coroner area and secretary of the Coroners Society, said that he liked to have everybody in the room. He was not saying that for its own sake, but because there are times, when evidence is being heard or judicial decisions are being made rather than in administrative hearings, when it is important for people to be present. Although doing things remotely may have been the best that we could do during covid, that will not always be the case.
I simply caution that if justice is to be properly done, we should be cautious before we throw out the methods that have served us not just for decades but for centuries in assessing the quality of evidence, in advocacy and in ensuring that we get to the best result we can in every case. I hope that we will be as modern and efficient as we can, and use as much technology as we can, but not at the price of excluding people or of not seeing justice done.
Alex Cunningham
I appreciate the Minister’s sharing information about his past career; it is fascinating to find out what people have done in their previous lives. Perhaps one angle of his business could have been encouraging people to move to the north where, instead of buying a share in a house for £150,000, they could buy a lovely three-bedroom semi-detached house in Stockton; have access to our wonderful newly opened Globe theatre; and be 30 minutes from the Yorkshire moors, 40 minutes from the Yorkshire dales and only an hour from the Northumberland coast.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Judicial Review and Courts Bill (Eleventh sitting)
Andy Slaughter ExcerptsTuesday 23rd November 2021
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 November 2021 - (18 Nov 2021)
Tom Hunt (Ipswich) (Con)
Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.
Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.
Andy Slaughter (Hammersmith) (Lab)
Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.
The Chair
Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.
Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.
Andy Slaughter
The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:
“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.
The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”
I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:
“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”
The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.
None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.
Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.
Sir John Hayes
On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.
As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.
Andy Slaughter
I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.
Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.
Andy Slaughter
That is enough, apparently—according to the Minister.
Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.
The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.
The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.
The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.
The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.
Andy Slaughter
Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.
Dr Johnson
With respect, that point is not in debate. What Lord Carnwath said is:
“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”
What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.
Andy Slaughter
No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.
Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.
As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted
“in fundamental breach of the principles of natural justice”
has been removed. The more restrictive exception of where the court acts in a way
“that constitutes a fundamental procedural defect”
has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.
The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.
Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.
Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.
Sir John Hayes
I rise to correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.
Andy Slaughter
I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.
In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.
Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.
The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.
Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.
There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.
The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.
Tom Hunt
I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.
Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.
I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.
As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.
Andy Slaughter
I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.
Andy Slaughter
We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.
Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.
The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.
It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:
“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”
On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.
It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.
Sir John Hayes
I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?
Andy Slaughter
With respect to the right hon. Gentleman, I do not agree that that is what is happening. Even if he had a point there, I am trying to make the point, by looking at the changes that his new clause would make, that there are already safeguards in the system to prevent that and that the rules are tightly drawn in relation to evidence and disclosure. The courts do have discretion, but they use that appropriately and reservedly.
Any limitation of the disclosure of evidence, as well as oral evidence, beyond the current test risks undermining the effectiveness of judicial review proceedings for all parties. The current form of judicial review, which has limited disclosure requirements on the parties, works only because the parties are subject to duties of candour. In many respects, the disclosure obligations, where parties must submit all relevant evidence and information relating to the case to the court, ensure that the duty of candour is complied with. In the vast majority of cases, both parties comply fully with the duty of candour, but on the rare occasions when they do not, the judge’s disclosure powers can be used to ensure proper compliance.
In cases where the duty of candour would be limited by the proposals in subsection (2), which I will come to, the basis for limited disclosure requirements falls away. The combination of subsections (1) and (2) may mean that a claimant in a case is faced with the inability to obtain any disclosure at any point from a public body.
In effect, weakening those disclosure powers weakens the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies feel that they do not need to comply with the duty, it will severely weaken the position of claimants, contribute to an inequality of arms in judicial review proceedings and risk completely barring, in practice, the ability for the claimant to bring a judicial review. For all sorts of reasons, including funding, the tight restrictions on bringing claims and the difficulties of bringing claims, there are already substantial problems for any claimant in beginning judicial review proceedings.
Subsection (2) would enable a public authority to effectively disapply the evidential duties, including the duty of candour, by indicating its intention to argue that the matter is not justiciable. That would make many cases completely un-triable. As I have said, the current form of judicial review, with limited fact-finding and disclosure requirements, works only because the parties are subject to a duty of candour. The duty requires a “cards on the table” approach and, as has been noted,
“the vast majority of the cards will start in the authority’s hands”.
For claimants to have the ability to get over the starting line and bring judicial review proceedings, the defendant body must be subject to the duty of candour. The duty ensures that all relevant information and material facts are before the court, and that any information or material facts that either support or undermine their case are disclosed.
As the “Administrative Court Judicial Review Guide” recognises, compliance with the duty of candour is “very important”. It helps to resolve matters efficiently and effectively. By requiring both parties to undertake full disclosure of relevant information early on in proceedings, it allows for a proper assessment of the merits of the case. That can help public bodies show claimants early on evidence that the decision was taken lawfully, which can lead to an early settlement, withdrawal of the challenge or at least the narrowing of the issues in dispute. That avoids substantial unnecessary costs and use of court time.
New clause 5 should have no place in the Bill. Subsection (2) would enable public authorities to disapply the duty of candour where they indicate their intention to argue that the matter is not justiciable. When this is combined with increased difficulty with accessing evidence through disclosure orders, set out by subsection (1), claimants will be denied access to evidence required to advance their case, making many cases unworkable. I therefore hope that the Minister will also resist the new clause.
Tom Hunt
It is a pleasure to grace this Committee again through a contribution, and to support my right hon. Friend the Member for South Holland and The Deepings on new clause 5. It is obviously not related to new clause 3. We did attempt to table other new clauses, but we were unsuccessful because they were deemed to be out of scope, but many of those new clauses were, in fact, not dissimilar to or disconnected from new clauses 3 and 5.
In terms of whether different Lord Chancellors are mild korma or vindaloo, I am usually a korma man, but when it comes to review, I am perhaps more vindaloo, because I think that we do need some significant changes in this area.
I very much welcome the Bill, which, with or without these new clauses, is a significant step in the right direction. I have been pleased to sit through all our sittings in support of the Bill, and I think that the Minister has led proceedings very effectively. It has been quite interesting, because although I do not profess to be a lawyer—I am not a trained lawyer or professional—I am an elected Member of Parliament who cares about my constituents and my constituency, but also about this country and the relationship between the Executive, the legislature and the courts, which is vitally important. I make no apology for commenting on these matters and getting involved, because I think it is very important that elected Members of Parliament do so.
We are very lucky to have our judiciary, and the rule of law in this country is respected all over, but some of these figures can be remarkably prickly—and I have noticed that many seem invariably to have the EU flag on their Twitter profiles. I think there is almost a view that elected Members of Parliament are knuckle-draggers who are not entitled to have a view on a lot of these issues. Well, I disagree. I think that when it comes to matters such as sentencing and the operation of the courts, we as elected Members of Parliament, regardless of our specific views, should absolutely be confident to air them and should not be intellectually intimidated by certain individuals.
I sympathise with the broader view about judges assessing law and procedure, rather than getting sucked into contested facts, and about how evidence sessions can sometimes draw them away from their core function and into dangerous waters. There are many cases. The Adams case is connected to new clause 6 so we will not discuss that, but there is an obvious connection between it, the Miller case and the Privacy International case, which we discussed earlier, and that is the creeping role of the courts beyond their brief and scope, and I think that that has damaging consequences. In the Adams case, in terms of the debate on whether it is enough for a Minister or a Secretary of State to make a decision, I really struggle to agree that it is for judges to decide what is appropriate against established Acts of Parliament. That does not make any sense to me. I think that clarity in this area—and Parliament, through legislation, clarifying the relationship between the Executive, the legislature and the courts—is vitally important.
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.
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick) Judicial Review and Courts Bill
Andy Slaughter ExcerptsTuesday 25th January 2022
(2 years, 9 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 January 2022 - large print - (25 Jan 2022)
Andy Slaughter (Hammersmith) (Lab)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker
With this it will be convenient to discuss the following:
New clause 5—Removal of the means test for legal help prior to inquest hearing—
“(1) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In paragraph 41, after sub-paragraph (3), insert—
‘(4) For the purposes of this paragraph, the “Financial resources” provisions at section 21 (and in The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 do not apply.’.”
This new clause would remove the means test for legal aid applications for legal help for bereaved people at inquests.
New clause 6—Eligibility for bereaved people to access legal aid under existing provisions—
“(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In subsection (4)(a), after ‘family’, insert ‘or where the individual is an Interested Person pursuant to section 47(2)(m) of the Coroners and Justice Act 2009 because of their relationship with the deceased’.
(3) In subsection (6), after paragraph (c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’
(4) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(5) In paragraph 41, after sub-paragraph (3)(c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’.”
This new clause would bring the Legal, Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of family used in the Coroners and Justice Act 2009.
New clause 8—Exclusion of review of the Investigatory Powers Tribunal—
“(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) Leave out subsection (8) and insert—
‘(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.
(9) In particular—
(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and
(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.
(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—
(a) has a valid case before it;
(b) is or was properly constituted for the purpose of dealing with the case;
(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.
(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.’
(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”
New clause 9—Evidence in judicial review proceedings—
“(1) Unless there are compelling reasons to the contrary, no court shall—
(a) permit oral evidence to be elicited in judicial review proceedings; or
(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings.
(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—
(a) the proceedings concern a matter that is non-justiciable, or
(b) that an enactment excludes or limits judicial review, no evidential duty arises on that body or person until a court determines that the matter is justiciable and that no enactment excludes or limits judicial review.
(3) In subsection (2), ‘evidential duty’ means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.
(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”
Amendment 23, page 1, line 3, leave out clause 1.
This amendment would remove clause 1 of the Bill continuing the status quo removing the provision to make quashing orders suspended and prospective-only.
Amendment 1, in clause 1, page 1, line 8, leave out from “order” to end of line 9.
This amendment would remove the provision for making quashing orders prospective-only.
Amendment 24, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”
The insertion of this subsection would limit the use of any new remedies issued under clause one to where in the court’s view it is in the interests of justice.
Amendment 31, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 2, page 1, leave out lines 15 to 18.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 3, page 2, line 2, leave out “or (4)”.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 26, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsections (3) or (4) do not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsections (3) or (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss.”
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings.
Amendment 27, page 2, line 12, leave out “must” and insert “may”.
This amendment would make clear that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.
Amendment 33, page 2, leave out lines 14 and 15.
This amendment removes one of the factors to be considered by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 34, page 2, line 17, at end insert
“including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.
This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect.
Amendment 35, page 2, line 19, at end insert
“which are to be identified by the defendant”.
This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 28, page 2, line 21, leave out
“or proposed to be taken”.
This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.
Amendment 37, page 2, leave out line 23 and insert—
“(f) the Convention rights of any person who would be affected by the decision to exercise or fail to exercise the power;
(g) the right to an effective remedy for a violation of a Convention right under Article 13 of the European Convention on Human Rights; and
(h) any other matter that appears to the court to be relevant.”
This amendment would ensure that the courts would take into account the ECHR rights of those affected, including the right to an effective remedy, before exercising the new power to suspend a quashing order or give it prospective-only effects.
Amendment 29, page 2, line 23, at end insert—
“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”
This amendment clarifies that the principle of good administration includes the need for administration to be lawful.
Amendment 25, page 2, leave out lines 24 to 32 and insert—
“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the claimant and any other person materially affected by the impugned act in relation to the relevant defect.”
This amendment would remove the presumption and make it a precondition of the court’s exercise of the new remedial powers that they should offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 4, page 2, leave out lines 24 to 32.
This amendment would protect the discretion of the court by removing the presumption in favour of issuing suspended, prospective-only quashing orders.
Amendment 38, page 2, line 29, leave out from “court” to end of line 30 and insert
“may exercise the powers in that subsection accordingly”.
This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.
Amendment 32, page 2, leave out lines 31 and 32.
This amendment removes the extra weight which would otherwise be given to subsection 8(e) by the courts when applying the test created in subsection 9(b) to establish whether the statutory presumption is applicable.
Amendment 30, page 3, line 13, at end insert—
“(5) After section 31A of the Senior Courts Act 1981 insert—
‘31B Constitutional importance of judicial review
It is recognised that judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.’”
This amendment would highlight the importance of judicial review in the UK’s constitutional principles.
Amendment 5, page 3, line 14, leave out clause 2.
This amendment would preserve the ability of claimants to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal (also known as “Cart judicial review”).
Government amendment 6.
Amendment 42, in clause 2, page 4, line 16, leave out from “Ireland” to the end of line 17.
This amendment is consequential on amendment 43.
Amendment 43, page 4, line 19, at end insert—
“(8) This section does not extend to Scotland.”
This amendment would ensure that the exclusion of review of Upper Tribunal’s permission-to-appeal decisions did not extend to Scotland.
Andy Slaughter
It is a pleasure to open the debate and speak to the new clauses and amendments that stand in my name and those of my right hon. and hon. Friends. I am grateful to the Government for their co-operation on the programme motion, and to the Minister and his colleagues for the civilised way in which we have debated the Bill thus far. Unfortunately, they were not persuaded by our arguments in Committee, so if there is no movement today, the Opposition will vote against the Bill on Third Reading, as we did on Second Reading. We have issues with part 2 of the Bill, which will mainly be dealt with by my hon. Friend the Member for Stockton North (Alex Cunningham) in the debate on the second group of amendments, although I will deal in this group with our concerns about chapter 4 on coroners and our proposed new clauses 4 to 6.
I start with amendments to part 1 of the Bill, which are the most numerous and most needed to try to redeem the Bill. There is a strong clue to the Opposition’s approach in amendment 23, which we tabled to leave out clause 1 in its entirety. I have also signed amendment 5, tabled by the Liberal Democrats’ spokesperson, the hon. Member for Bath (Wera Hobhouse), which would leave out clause 2. In short, we see no merit at all in part 1 of the Bill and would strike it out.
The purpose of judicial review is to determine whether public bodies have made lawful decisions and to provide remedies where they have not. The conceit of the Government’s approach, which would be taken further by new clauses 8 and 9, tabled by the right hon. Member for South Holland and The Deepings (Sir John Hayes), is that the courts are trespassing on the rights of Parliament, substituting their views for ours and, in some ways, entering the realm of politics. We read that the Justice Secretary and the Prime Minister think that the Bill, which was introduced by the previous Lord Chancellor, the right hon. and learned Member for South Swindon (Sir Robert Buckland), does not go far enough in clipping the judges’ wings. They seek to remedy that through repeal of the Human Rights Act 1998 and its replacement by a so-called new Bill of Rights and an interpretation Act: an annual audit by Parliament of which judicial decisions it likes and which it seeks to overturn. The Opposition think that that is constitutionally wrong and a provocation.
A better way to look at the role of the courts was set out by the late Lord Bingham in A. v. Secretary of State for the Home Department who, in rejecting submissions from the then Attorney General in that case, said:
“I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true…that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.”
We celebrate the role that judicial review plays in our constitution in amendment 30, which says that
“judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.”
Should the Government prefer that wording to that of the clause, that would be welcome. Failing that, we have tabled 11 further amendments that cumulatively or, in the alternative, seek to mitigate the worst effects of clause 1.
The clause introduces suspended or prospective-only quashing orders and cements them with a presumption that they will employed by the courts in most cases. The Government-appointed independent review of administrative law, which was supposed to lay the groundwork for the Bill, did not recommend prospective-only orders and specifically disapproved any presumption as to their use. Prospective-only orders could deprive claimants of a proper chance of redress and will certainly create a chilling effect. What is the incentive to pursue judicial review if the claimant has no prospect of having the wrong righted?
The presumption is the clearest but not the only way in which the clause seeks to fetter judicial discretion. The Opposition’s remaining amendments seek to restore that discretion and attack the most prescriptive parts of the clause. Amendment 24 provides that modified quashing orders will be applied only where, in the court’s view, it is in the interests of justice, and that they ought to be confined to those rare cases where a quashing order might cause, for example, significant disadvantage to third parties. Amendment 31 recognises that suspended quashing orders may be beneficial in some cases but seeks clarity from the Government on their intentions and what conditions they feel should be met when using the provision.
Amendment 26 looks to preserve collateral challenge in the event that such modified quashing orders are used. Let us say that delegated legislation made during the coronavirus crisis that created imprisonable criminal offences was declared illegal by a court. If a court granted a prospective-only quashing order under the Bill, that would make imprisonment legal before the remedy. A person accused could not argue before the criminal courts that the statutory instrument was invalid, because the measure requires a judge to act as if it were valid. The amendment seeks to protect a person’s right to use the court’s decision as a defence in criminal proceedings.
Amendment 27 clarifies any factors that the court considers are a matter for its own judgment. The current use of “must” instead of “may” directs the judge’s reasoning and interferes with judicial independence and discretion. That is especially obnoxious as judicial review is discretionary and involves taking account of all the factors before the court. The court must be able to do justice on the facts, not be nudged to decide cases favourably to the Executive.
Amendments 33 to 35, 28 and 32 deal with the list of factors the Bill requires the courts to consider when applying a quashing order. For example, amendment 33 will remove a factor that would unfairly disadvantage the claimant. Amendment 34 recognises that a suspended or prospective-only quashing order can leave a claimant waiting for justice, so it asks the court to be mindful of a timely remedy. Amendment 28 would remove the requirement to take account of actions that the public body proposes to take. For example, if a public body tells a court that it intends to carry out certain measures to fix a problem, the court may suspend the quashing order, but if the public body goes away and changes its mind on the actions that it will take, the claimant, again, is left without a timely remedy. Amendment 28 would ensure that the court does not have to take account of the proposals made by a public body, and so a quicker remedy for the claimant ensues. Taken together, the amendments rebalance the proposal in clause 1 to protect the rights of claimants.
Amendment 29 clarifies that the principle of good administration includes the need for administration to be lawful. Let me finally, in addressing clause 1, turn to amendment 25, which would remove the presumption that suspended or prospective-only quashing orders should be used, and, instead, favours an effective remedy being offered to the claimant so that justice is preserved. The presumption set out in clause 1(9) undermines the independence and discretion of the court. The presumption acts on a one-size-fits-all approach to justice and does not respect the judge’s ability to assess the facts laid out in front of them in their courtroom and decide on a suitable conclusion. Amendment 25 also has a further protective factor that, if clause 1 is kept within the Bill and suspended and prospective-only quashing orders are to be used, there will be a pre-condition that there will be an effective remedy. If a single step could improve this part of the Bill, save abandoning it entirely, it is the removal of the presumption. For that reason, we wish to test the House on amendment 25 this afternoon and put it to a vote at the end of the debate.
Clause 2 ousts the jurisdiction of the High Court in relation to what are called Cart judicial reviews and removes the supervisory jurisdiction of the court over the tribunal system in those cases—for example, where the upper tribunal has refused the claimant the right to challenge the decision made in the first-tier tribunal not to allow and appeal the earlier decision.
In Committee, we objected to clause 2 both because of the nature of the cases subject to the Cart jurisdiction, which are primarily, but not exclusively, immigration and asylum cases, and because, on the Government’s own admission, it is designed to set a precedent for future employment of ouster clauses, which they clearly intend to become a more common feature of legislation. That is another attempt to subvert the authority of the courts. Unlike with clause 1, there is little that could be done to improve clause 2—you either like it or you don’t. Therefore, most commentators who are concerned by it think that the only solution is to strike it down. That was also the view of both Opposition parties in Committee, and we see from amendment 5 that it is also the view of the Liberal Democrats whose amendment to leave out clause 2 I have signed.
Contrary to the Government’s narrative that Cart judicial reviews are profligate, they are only allowed to proceed where there is an arguable case that has a reasonable prospect of success that both the decision of the upper tribunal refusing permission to appeal and the decision of the first-tier tribunal against which permission to appeal was sought are wrong in law. The claim either raises an important point of principle or practice, or there is some other compelling reason to hear it. Again, this is a mechanism to right a wrong. In the instance of Cart judicial review, it is to be used when there has been a serious error of law in the first-tier tribunal and stops deserving cases slipping through the net.
Judicial Review and Courts Bill Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)Department Debates - View all Andy Slaughter's debates with the Ministry of Justice
Judicial Review and Courts Bill
Andy Slaughter ExcerptsTuesday 26th April 2022
(2 years, 6 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 26 April 2022 - (26 Apr 2022)
Andy Slaughter (Hammersmith) (Lab)
I thank those who have worked to improve this Bill during its progress through both Houses. Without embarrassing him, I would single out my hon. Friend the Member for Stockton North (Alex Cunningham), who volunteered to lead on the courts part of this Bill—that is, most of it—before he had even finished with the Police, Crime, Sentencing and Courts Bill. I would also mention the efforts of our colleagues in the other place, particularly my noble Friends Lord Ponsonby and Baroness Chapman and senior Cross Benchers, who are a large part of the reason why we are discussing successful Lords amendments today—all credit to them.
In the spirit of consensus that has been a feature of much of our proceedings, I thank the Minister and his team for at least listening and entertaining our views, even if we did not in the end see eye to eye, and for their significant concession in removing the presumption from clause 1. Since the Bill was first introduced, I have also been lucky enough to work with many individuals and organisations with particular expertise on the issues covered. I would like to put on record my thanks to the Public Law Project, Inquest, Justice, Liberty, the Bingham Centre, the Law Society and the Bar Council, but that list is not exhaustive.
The majority of amendments before the House today—Lords amendments 6 to 10 and 12 to 22—are Government amendments that amend part 2 of the Bill. For the avoidance of doubt, we do not oppose these. We had issues with part 2 of the Bill, but these were mainly procedural and are, I hope, open to correction in the light of experience. Our objections to part 1 are more fundamental, and we are grateful to the other place for highlighting these in Lords amendments 1 to 5. I will deal with these and then come on separately to Lords amendment 11.
First, by way of a little context, we see no purpose whatsoever in clauses 1 and 2 of this Bill, and it would be our preference to remove these clauses from the Bill entirely. Our attempts to do so in Committee were not successful, but our principal objections were reflected in the Lords amendments. Lords amendments 1 to 3, in the name of the noble Lord Marks, remove prospective-only quashing orders from the Bill.
One of the ways that the Government wish to change—they say improve—judicial review is to introduce a remedy that only rights a wrong for the future, without looking to compensate the complainant or those who have come before them. This has rightly been described as having a chilling effect on meritorious applications. It was not recommended by the independent review of administrative law that was supposed to found the basis of part 1 of the Bill. It does not, as the Government somewhat disingenuously claim, add to the armoury of the administrative court; it simply seeks to restrain its powers. That fact is given away by the clunking fist of the presumption in favour of prospective orders and of suspended orders, which clause 1 also sought to introduce. In a step bordering on the disrespectful, the Minister sought to tie the hands of the court in applying its discretionary powers, so I am delighted the Government have seen the light and do not today oppose Lords amendment 4, in the name of Lord Anderson. That extracts the worst of the sting in clause 1.
Lords amendment 5, in the name of Lord Etherton, was a pragmatic attempt to make sense of the Government’s proposal to abolish Cart judicial reviews in clause 2 of the Bill. It met both the Government’s complaint that these were too profligate and the real concerns of practitioners and others that errors of law would lead to human tragedies. It would also have mitigated the concerns about unnecessary and unwelcome employment of an ouster clause. Cart judicial review, as Members here know, is engaged when the High Court reviews a decision of the upper tribunal to refuse permission to appeal a decision of the first-tier tribunal.
Clause 2 abolishes this type of judicial review altogether, yet most cases that satisfy the threshold for Cart are compelling. In many examples, as we discussed in Committee, these are asylum or human rights cases—issues of mental health, special educational needs or entitlement to basic incomes and support needs—which have serious consequences for the claimants if errors of law have been made and are sometimes matters of life and death. Lords amendment 5 narrows the ambit of Cart so that in the majority of cases there is no onward right of appeal. The only exception would be where the case raises a point of law of general public importance. In that situation, the claimant could apply to have the case considered by the Supreme Court.
The amendment represents a compromise between the Government’s desire to save the cost of Cart judicial reviews and the need to preserve an essential judicial check against serious errors of law. All that has been argued in the other place, and votes won—albeit narrowly—on amendments 1 and 5. In discussions, the Government have conceded on the presumption. We accept that that is a significant concession, and we do not intend to press any votes on the Lords amendments clauses 1 and 2 today.
Let me turn to Lords amendment 11. Eleven days ago, on 15 April, we marked the 33rd anniversary of the Hillsborough tragedy, where 97 people lost their lives at a football game. For 33 years the families of those who were lost have fought, and continue to fight, for justice. They faced cover-ups and fundamental failures of our legal system, which only prolonged their suffering. Many campaigners—prominent among them the Mayors of Greater Manchester and the Liverpool City Region, former colleagues of ours in this place—are asking for a comprehensive Hillsborough law, which we support. Lords amendment 11 addresses an important plank of the Hillsborough law, but it goes beyond that by providing equality of arms for all bereaved families at inquests and inquiries.
The amendment would require the Government to provide public funding for bereaved families where the state is represented. It is remarkable that, even with the cuts in legal aid that we have seen over the past 10 years, current rules do not provide that. This is an issue not just of access to justice, but of basic fairness. How can it be that state bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowdfunding?
Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made 25 recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. The inquiry by the all-party group on legal aid last year reached a similar view, and many voices are saying the same thing: it is time to level the playing field when state actors are represented in inquests.
The Government have acknowledged that there is more to do on this issue. They are minded to offer non-means-tested legal aid for early advice and representation where exceptional case funding is engaged. With respect, that is not enough. It would not help—to give only some examples—in the situations of families of those who suffer healthcare-related deaths in detention, self-inflicted deaths of voluntary patients in mental health settings, those under the direct care of a mental health trusts in the community, deaths in supported accommodation, or care settings where the person has been placed by a public body or local authority. It would not have helped Coco Rose Bradford, a six-year-old girl with autism who was taken to hospital in Cornwall and died unexpectedly on 31 July 2017. In January 2022, the inquest into her death concluded, finding it to be due to natural causes—something Coco’s family disputes. Coco’s mother, Rachel Bradford, told the inquest how she watched her daughter die in front of her, and how the hospital dismissed the family’s concerns, even though Coco was in glaringly obvious pain. Rachel gave evidence that Coco’s autism played a role in how she was treated by medical staff, and that the professionals wrongly viewed her as being unco-operative and non-compliant.
Members of the local community donated to contribute towards the family’s legal costs for the inquest. Coco’s mother said in a personal statement:
“Without our barrister offering to act pro bono at the inquest hearing we’re not sure what would have happened. It seems desperately unfair that we have had to crowdfund to cover our legal fees, and rely on our barrister waiving her charges, when the hospital’s legal team are paid for by our taxes.”
Cases such as those are daily injustices in our coroners courts. We can no longer ignore the voice of Bishop Jones or Rachel Bradford. I urge members of this House to retain Lords amendment 11 because it is the right thing to do. If the Bill passes without the inclusion of Lords amendment 11, we will miss another opportunity to ensure that fairness is at the heart of our legal system.
From the day this Bill was introduced, we have puzzled about why the Government were wasting time interfering with judicial processes that are designed to improve the quality of executive decisions, rather than tackling the record backlog of cases in our courts and protect the victims of crime. By supporting Lords amendment 11 the Government could make a small but significant step to improve the court system and the experience of bereaved families.
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to follow the Front-Bench speakers in this short but important debate. I welcome the Government’s stance on presumption and their acceptance of the amendment made in the Lords. It is worth remembering that Lord Faulks, who chaired the independent review that gave rise to all these proposals, took the view that no harm was done by removing that presumption, and that thereafter the discretionary power to have a prospective-only order that can be considered by the courts if it meets the interests of justice was, as I think he put it, an extra club in the bag of the judiciary. That is the whole point of it: it extends the remedial powers available. At the end of the day the presumption was not perhaps necessary, and the Government have taken a sensible and pragmatic stance on that. The principle of having that extra flexibility in the remedy is not objectionable, and I am glad the Opposition have not opposed it.
Some of the other changes made by the Government in the Lords are welcome. The ability to make payment for pro bono representation in a number of cases is welcome, and I am glad the Government have moved in that direction. Practitioners and the judiciary alike will welcome the changes to make online procedure rules easier and swifter to deal with, so those are practical changes.
Two issues then remain, including Cart appeals and litigation. I must respectfully differ with the shadow Minister and their lordships on that, and it is perhaps worth quoting what Lord Faulks said about it in the other place—after all, he examined this issue with probably more care than anyone. His stance was that the independent review into administrative law
“came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1736.]
That was its view, having carefully considered the evidence, in adopting a cautious approach to such a change.
Cart was controversial at the time, and it remains controversial. Lord Carnwath, who has given evidence to the Justice Committee in the past, raised questions about the Cart appeal, with his specialist knowledge of the genesis of the upper tribunal. The general view of many is that, to quote a phrase used by Lord Hope in Committee, it was a “legal misstep”. There are, of course, a tiny number of successful cases, but those should be set against the very real burden that falls not on the Court of Appeal, where Lord Etherton— for whom I have great respect—served, but on the justice sitting in the Queen’s bench division. That is where the judicial pressure is, and we should look to remove something that many practitioners, and in private many members of the judiciary, regard as an unhelpful burden on them.
In immigration cases in particular, convention rights will be engaged, but they will have been engaged from the outset. By the time we get to the Cart appeal, they will have been argued and considered by the first-tier tribunal and by the upper tribunal which, as Lord Carnwath pointed out, was designed to be a superior court, and to have in effect the judicial weight and equivalence of the High Court. An anomaly arises from the Cart decision, and it is right and proportionate to remove it.