Andy Slaughter (Hammersmith) (Lab)

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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.

Andy Slaughter

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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.

Andy Slaughter

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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

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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.

Andy Slaughter

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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.

Andy Slaughter

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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.

Andy Slaughter

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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.

Andy Slaughter

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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

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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.

Andy Slaughter

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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.

Andy Slaughter

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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.