Andy Slaughter
Main Page: Andy Slaughter (Labour - Hammersmith and Chiswick)(3 years ago)
Public Bill CommitteesQ
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.
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.
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.
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.
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.
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.
Richard, do you wish to respond to this question?
Richard Leiper: No thank you.
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.
Mr Leiper, am I okay to ask you about employment tribunals?
Richard Leiper: You can.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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%.
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.
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.
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.
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.
Chair, I was going to ask about judicial review, but I understand I will have time at the end.
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.
Andy, we have a bit of time left. Would you like to come back to your earlier point?
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 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.
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.
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.
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.