Judicial Review and Courts Bill

Andy Slaughter Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[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.