Judicial Review and Courts Bill

Angela Crawley Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Anne McLaughlin (Glasgow North East) (SNP)]

I welcome the Secretary of State to his new role, and I pay tribute to his predecessor, who was courteous and respectful to me at all times.

This Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of some of their most vulnerable people, whether it is the Elections Bill putting barriers in the way of ordinary people being able to vote; the Police, Crime, Sentencing and Courts Bill restricting the right to protest publicly; the Nationality and Borders Bill potentially criminalising people for saving the lives of asylum seekers; or this Bill reducing access to justice for those who have been badly treated by a public body. As Liberty has said, there is

“a concerted attempt to shut down potential routes of accountability and exert the power of the executive over Parliament, the courts and the public.”

Since my first election in 2015 I have sought to ensure that my constituents understand what goes on in this place. I think we can all agree that there is much that perplexes people, and that there are many levers that we and they can use of which they are not aware. There is a huge learning curve for a new MP so, as I got to grips with things, I tried to pass on what I learnt.

As time has moved on, I have turned my attention to the complexity of the language which can create barriers for people who do not do parliamentary speak. Since I became my party’s justice spokesperson, I have become acutely aware of the sometimes even more exclusive nature of legalese, so I feel something of a duty to interpret what is going on so that it can be readily understood by the average person in the street. To be clear, I am not questioning the average person’s ability to understand, but if someone does not use legal or parliamentary language regularly—and how many people out there do?—it will not come naturally. When we speak, we should remember that we are speaking not just to each other in here but to our constituents and to each other’s constituents. When they are losing their right to justice, we have an absolute duty to make sure that they know that that is what is happening. That is what I hope to do today. I am also happy to confirm that we are opposed to much of the Bill and will vote against its Second Reading.

Clause 2 seeks to oust Cart judicial reviews and, in Scotland, Eba judicial reviews. If an individual feels that a public body—such as the NHS, their local council or the Department for Work and Pensions, to name but a few—has failed to follow the law correctly in its decision-making process, that individual can appeal to the first-tier tribunal. If the first tier finds against them and that individual believes it has made an error of law, perhaps by overlooking vital evidence or misinterpreting the rules, that individual can appeal to the upper tribunal. Currently, if the upper tribunal refuses an appeal on the decision of the first-tier tribunal, the individual can ask to have the decision judicially reviewed. All sorts of criteria have to be met—one cannot simply ask for and get a judicial review—but currently people can at least apply. The legislation before us will remove that right. One might say, “Well, they’ve already had two bites of the cherry,” but the independent oversight of judicial review is being removed only for the tribunal system; currently, all other judicial reviews will continue. I say currently, because I share the fears expressed today by the right hon. Member for Haltemprice and Howden (Mr Davis) in his article: we do not know where this will lead. We do know that it is so often the tribunal system that deals with the least powerful in our society, from whom the Bill removes the right to justice.

As the Law Society of Scotland has pointed out, the decisions of the upper 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, or to answer any questions that the judge may have. 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.

We have heard much talk about the Government’s justification for taking away those rights, which appears to be the high volume of applications versus the low number of successful outcomes, but let us look at that. The evidence to support the Government’s position was so flawed that the Office for Statistics Regulation decided to investigate and found that the real success rate was at least 15 times higher than the Government figures showed. When the right hon. Member for Tottenham (Mr Lammy) mentioned that, I saw the Secretary of State laughing, as if that was a derisory amount, but if we use the figures calculated by the Public Law Project, we see that that would amount to 40 people every year being incorrectly denied their right to appeal in cases where, as we have heard, the stakes can be incredibly high.

The Government seem to class an appeal as successful only if it first overturns the decision of the upper tribunal, is given permission to appeal and that appeal is then won further up the chain. They completely miss the point that Cart reviews serve to correct errors of law even if the appeal is ultimately unsuccessful. I cannot for the life of me see how all this can happen without a legislative consent motion from the Scottish Parliament, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) has argued and will no doubt argue further in her speech.

Throughout my speech, I feel like I should be saying, “As the right hon. Member for Tottenham said,” because it feels like we have swapped speeches. I am trying to find different examples. We have heard that even the Government’s own figures say that the change will save only around £400,000 per year. Never mind the spending on the art collection: £2.6 million was spent on refurbishing No. 9 Downing Street as a media centre, and the saving represents less than one sixth of that. What is more important?

Let me return to why this type of judicial review is so important. I want to give an example of when it saved somebody’s life. This case concerns a Venezuelan man and his family who had fled to the UK after witnessing the violent murder of his friend by state actors. He arrived in Edinburgh and was refused asylum claimed on the grounds that if he was sent back to Venezuela, the perpetrators, who clearly had scant regard for human life, would seek to silence him. The first-tier tribunal and the upper tribunal surmised that, because he had suggested in evidence that he would not be able to recognise the killers, he had nothing to fear. Thankfully, he had that vital last line of defence and was able to judicially review the decision.

During the proceedings, the court found that both tribunals had made an error of law in misunderstanding this traumatised man’s evidence. He could testify to the time and location of the murder and he could be a credible witness in an investigation—perhaps his memory would be jogged by viewing photographs or creating photofits. It was obvious that the perpetrators would surely know that and would do anything within their power to prevent him from speaking up on his return.

The upshot was that the man was allowed to appeal. He won his appeal and was saved from deportation and almost certain persecution and death. How can the Government justify even to themselves taking away those rights?

The reversal of Cart-type judicial reviews could, as Liberty and others have pointed out, affect cases of access to vital benefits, leaving people with disabilities and those facing destitution and homelessness without a last line of defence. Nobody can guarantee that they will not one day have a disability, and very few people can guarantee—perhaps a few in here can—that they will not be absolutely dependent on disability benefits to survive financially. If, for some reason, they were to be denied those benefits, as happens far too regularly, and appealed against it, they would deserve the right to question that decision-making process.

I want to focus now on the suspended quashing orders and the prospective-only remedies in clause 1. They will not apply in Scottish courts, but because they can and will affect UK-wide laws, they will affect people living in Scotland—until, of course, we are independent, which I hope will not be too long from now. These changes could have a big impact on the Scottish courts for other reasons that I will come onto a little later—it is something known as forum shopping. Whether or not these orders are primarily for England and Wales, they are just plain wrong.

Let us look at quashing orders. The right hon. Member for Tottenham talked about the case of the employment tribunal fees. Basically, in a landmark judicial review in 2017, the Supreme Court found in favour of the applicant. I will not repeat everything that he said, but given that people were being charged up to £1,200 to access justice, this was a great outcome that will have made a big difference to many. If clause 1 had been in place then, those extortionate fees could have stayed in place until a date determined by the court. That would have given the Government time to rectify the unlawful policy. In other words, they would have been able to change the law so that the thing that had just been judged to be unlawful was suddenly lawful. Is that not incredible?

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Specifically on the important point about tribunal fees, this Government could have listened carefully to comments from across this House before introducing them. However, judicial review served as the primary purpose and vehicle for an individual to take action against this Government. How does my hon. Friend think this Government will be able to have that action taken against them in the future if they have their way with this Bill?

[Anne McLaughlin]

My hon. Friend is absolutely right, but she is wrong to think that I can suggest anything, because I cannot do so. I would love to know what the Secretary of State is saying about this. We really cannot underestimate the chilling effect that this will have. It will put people off attempting to access justice in the first place. Who would put themselves through all this for no tangible outcome? Clause 1 creates a perfect storm of claimants having no incentive to challenge the Government or other public bodies, whereas the said public bodies and Government can proceed safe in the knowledge that they can do what they like. It is the risk of being held to account and the potential for challenge that drives good decisions and policy making.

As I said earlier, despite clause 1 being restricted to the courts of England and Wales, there will be an impact on the Scottish courts. If the Scottish courts are not directly subjected to clause 1, which they are not, what is to stop people from using the courts in Scotland to bring judicial review challenges on UK-wide legal matters? After all, it makes sense to take a case to a court where judges have more discretion and a wider set of legal remedies. So, while on the one hand, I am always happy to showcase anything that we do well in Scotland and certainly very happy to link that to reasons why Scotland should be independent. If such a practice became widespread, the Scottish courts could face pressure on valuable resources, which could result in delays.

In conclusion, as Liberty reminds us in its evidence, the independent review of administrative law considered prospective-only remedies, but chose not to recommend them. It chose not to recommend a presumption for suspended quashing orders, nor did it recommend restricting judicial discretion to use alternative remedies. It did not recommend the use of ouster clauses. It based its recommendation to reverse Cart on later-to-be-discovered flawed Government statistics. However, the Government continue to push a Bill that blurs the separation of powers, restrains judicial discretion and, most importantly, discourages the public from challenging the decisions of the Government and public bodies. The SNP will be voting against Second Reading tonight, but I very much hope that some of the many concerns shared in here today by many Members will be considered before we proceed to scrutinise the Bill in Committee.

I am now going to end in a way that I never, ever envisaged I would do, which is by quoting a Conservative MP—the aforementioned right hon. Member for Haltemprice and Howden, who has said:

“Be warned: this government is robbing you of your right to challenge the state”.

We should heed that warning seriously.

--- Later in debate ---

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Scotland’s justice system remains devolved and, as such, the powers to amend the judicial review process are, thankfully, protected. The UK Justice Secretary’s predecessor recognised that separate nature in March when he told the House:

“In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.”—[Official Report, 18 March 2021; Vol. 691, c. 510.]

The Minister must give similar guarantees that, if the Bill becomes law, the Government will not look to expand its scope to impact on Scotland’s independent, unique and distinct legal system. He must also acknowledge that he should not have the authority to attempt unilaterally to unpick such a fundamental part of the UK constitution. The Scottish judicial review process has evolved over many years and the result is a proper system of checks and balances that does not need interference from Westminster.

That separate and valued legal system means that most of the Bill will not impact on my constituents or on Scotland, but parts of it will, and that does not detract from my concern about the way in which the Government are operating towards the judiciary in England and Wales. It appears to me that the Bill is part of a broader drive to increase the power of the Executive, to limit oversight, and to reduce the ability to seek judicial remedy in the courts and to hold this Government and Governments after them to account.

I say a broader drive, because the Bill is moving through this place at the same time as the Nationality and Borders Bill, the Elections Bill, the review of the Human Rights Act and the Police, Crime, Sentencing and Courts Bill.

Each taken on their own merit should be cause for concern, but as a package they leave little doubt that the Government’s strategy is to roll back the rights of vulnerable groups, while simultaneously removing the checks and balances on the Government’s Executive power.

The Prime Minister’s decision to prorogue Parliament in 2019 was the first step on the road to an increasingly authoritarian style of government. Since the two high-profile defeats on article 50 and prorogation, and several High Court rulings on immigration and employment tribunal fees, the Government have been vocal in their criticism of the justice system. The Home Secretary herself referred to “lefty lawyers” and “do gooders” looking to hamstring the legal system. In reality, the Bill is a crackdown by the Government, who are unable to move past the frustration of high-profile defeats in the Supreme Court. Rather than asserting their Executive authority and removing checks and balances, the Government should be listening to calls from senior legal experts across these islands and their own review.

Lord Faulks, a former Conservative Justice Minister, wrote that Ministers should “think long and hard” before seeking to curtail the powers to the judiciary. He added: “Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”

With that in mind, I urge Members to vote against the Bill and maintain the vital checks and balances in this crucial area of law.

Judicial Review and Courts Bill (Second sitting)

Angela Crawley Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Dr Johnson]

Q Can you give an example of where it might have been necessary? I have given evidence to coroners’ courts, in my capacity as a doctor. I remember one specific case where the doctor who had been involved with the child at the time of death was overseas and refused to return for the court. As someone cannot be extradited for the purpose of a coroner’s court, their evidence was not heard. Would allowing online processes enable that individual’s evidence to be heard? Does it apply to evidence being given virtually from overseas?

André Rebello: Under the Coroners and Justice Act 2009, the coroner can receive evidence by video, under rule 17 of the inquest rules. I have certainly received evidence from Australia and, I think, South Africa, with doctor witnesses who had moved overseas and then given evidence. I see no reason why coroners should not receive evidence from overseas. However, if people can attend, it is important, because it is a lot easier to give an explanation about the means someone comes by the cause of death, if everyone is in the courtroom, and everyone can follow the proceedings.

If Parliament brings in remote hearings for coroners and brings them in line with the Courts and Tribunals Service courts, the Chief Coroner will have to issue some very firm guidance on how and when it is used, because I do not believe it should become the norm.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Q Much has been said about the importance of having people present when looking into such an important matter, which I understand, but there is an accessibility issue. One thing we have learned throughout the pandemic is that many people have had the advantage of accessibility and the ability to attend. Would it not be a real advantage, in some instances, to have a hybrid performance, so you could retain the formal court setting, with people both present and remote, if required?

André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.

[Marco Longhi (Dudley North) (Con)]

Q I have a question for Mr Rebello. What is your view on coroners having the power to hold inquests without a hearing, particularly in non-contentious cases?

André Rebello: I have no problem with that proposal, that being another tool in the bag, as and where it is necessary, that is needed. My own preference is to go into court and record the hearing that I would have had, so that people can apply for a copy of what has been received and they can actually hear what has occurred. Certainly, it takes a lot longer to write down a considered decision than to go into court, go through the evidence orally and speak to it. Something that could take me five to 10 minutes in court, could take me an hour and a half to write down the issues, the law being applied, the rulings, the findings, determinations and conclusion, and then all the reasons which you would need for a considered judgment. That would be far, far more time consuming and may well take up far more coroners’ time. I appreciate not all coroners have access to courts all the time, and they cannot just go into court, so this is a very useful proposal, which I am sure will be used as and when needed.

--- Later in debate ---

[The Chair]

Louise, do you want to add anything?

Louise Whitfield: I have nothing to add to what my colleagues have already said.

[Angela Crawley]

Q Thank you for that, Sara. We have heard much this morning about how most of the judicial review cases are subject to immigration decisions, and that those are particularly privileged in terms of judicial oversight compared with other matters of jurisdiction. Do you think that that is a fair assessment? Can you indicate for the benefit of everyone here the other instances where judicial review is used as a remedy of last resort? I will start with the Public Law Project.

Sara Lomri: I do not have the stats in front of me to compare the number of JRs in the immigration jurisdiction and at the upper tribunal as opposed to the High Court, but I can quickly try and find those.

The judicial reviews that we are involved with are around how decisions of the state impact poor and marginalised individuals. There are issues around welfare benefits, special educational needs, discrimination against all kinds of individuals, and particularly disability discrimination and difficulties around getting access to public services. That is the mainstay of our work. I am not sure that anybody who uses the immigration justice system feels that they are getting any kind of special treatment.

We say that Cart JR—if that is what was behind the question—remains a really important procedural safeguard for the most vulnerable, marginalised and disadvantaged individuals, to make sure that unlawful and erroneous decisions do not go unchecked.

[Angela Crawley]

Q Thank you for that, Sara. I am conscious that Louise and Ellie might want to come in on that, but I will just ask a supplementary question specifically on the responsibility of Governments. Successive Governments have all had differences of opinion on policy, but it is not the responsibility of any Executive to ensure that their Government is held to account for their decisions. The Bill may limit future Governments and bind them by the same principle. Do you feel that is a fair point?

Sara Lomri: I would just say yes, I absolutely agree with that.

Louise Whitfield: I have not practised immigration law either—like Sara, I cannot comment on the figures—but a lot of the judicial reviews that I have been involved in over the last 20 to 25 years have been the kind of low-level day-to-day decisions that affect people. A lot of the debate has focused on the high-profile cases.

People hear about judicial reviews that go to trial over completely random issues, such as where Richard III should be buried and that kind of thing. In actual fact, judicial review is really important, if not essential, for day-to-day stuff such as whether you are entitled to a blue badge and whether rail replacement buses should be wheelchair accessible, and for loads of issues such as whether you should be supported to live independently in your home when you are old and disabled and struggling on your own, or whether you should have access to particular drugs or healthcare.

The reason why those cases do not get much publicity, but are really important, is that they settle pre-issue. They settle pre-issue because we have the opportunity, within an effective pre-action protocol, to say to a public body, “We think this decision is wrong; please put it right.”

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.

Ellie Cumbo: I understood the question to be about Cart and this idea that immigration cases are privileged—I think that is what you said. It is important, in the interests of strict accuracy, to say that Cart judicial reviews are available outside of immigration. Mr Cart himself was challenging a decision of the child support and social security tribunal. He was seeking to vary his child support. While I am on this, it is also worth saying that he ultimately lost; he was unsuccessful in securing a judicial review of his own. He merely won the principle that judicial review should be available in certain circumstances.

[Angela Crawley]

Thank you.

[Tom Hunt]

Q This is to Sara. In principle, do you agree that the Government have a duty to ensure that precious and limited judicial resources are directed as effectively and efficiently as possible?

Sara Lomri: Yes, of course.

--- Later in debate ---

[Janet Daby]

Would you like to respond, Dr Tomlinson?

Dr Tomlinson: I have spent quite a lot of time looking at the online proceedings question in England and Wales, and there are lots of interconnecting challenges around the move to online hearings. I have not spent much time looking at the criminal context, but rather at the use of online proceedings in tribunals. The challenge there with open justice is that online proceedings can potentially enhance open justice in various ways, but also diminish it. There is a real need for clarification of strategy in terms of key things like open justice, but also other areas, such as digital exclusion, in the reforms that we are seeing.

[Angela Crawley]

Q My question is to Michael Clancy. In its report, the Law Society of Scotland outlined questioned the Government’s conclusion that a legislative consent convention does not apply to the abolition of Cart judicial reviews in respect of reserved tribunals in Scotland, and that judicial review is a devolved matter under the Scotland Act in section 126(4). Why does the Law Society of Scotland consider that a legislative consent motion is required? Will one be required for clause 2 of the Bill?

Michael Clancy: We do take the view that the provisions of clause 2 engage legislative consent, otherwise known as the Sewel convention, which would require the consent of the Scottish Parliament. The reason for that is a piece of law that is a bit complicated and a bit tricky. Nevertheless, you began by identifying that judicial review of administrative action is part of the definition of Scottish private law, which is contained, as you say, in section 126(4) of the Scotland Act 1998. That is a significant element in terms of recognising that it is a devolved matter exclusively; it is not split between the reserved areas of law and the devolved ones.

I freely recognise that the Government have taken steps in terms of new clause 11A(5) of the Tribunals, Courts and Enforcement Act 2007, which states:

“Subsections (2) and (3) do not apply so far as provision giving the First-tier Tribunal jurisdiction to make the first-instance decision could…be made by…an Act of the Scottish Parliament, or…an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.”

However, while the Scottish Parliament does not have the power to modify the law relating to reserved matters, paragraph 2 of schedule 4 to the Scotland Act makes provision that applies only to the rules of judicial review insofar as

“the rule in question is special to a reserved matter”.

Special to a reserved matter would of course be a rule that would relate to something like an immigration tribunal, employment tribunal or employment appeal tribunal. Those are the kind of tribunals that one would think about.

In the 2010 Supreme Court case of Martin v. Most, there was a decision that a general rule that applies to both a reserved and devolved matter is not special to a reserved matter. Therefore, our conclusion is that if we follow the rule in Martin v. Most we get to the position where the decision in Eba—in fact, all judicial review matters under Scots private law—engage the Sewel convention and would therefore require the consent of the Scottish Parliament to be complied with, because of course it is declared in section 28 of the Scotland Act that

“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Of course, section 28 provides that the UK Parliament can always legislate for Scotland. That is not in dispute. It is whether the Sewel convention is engaged. I hope that that answers your question.

[Angela Crawley]

It did, thank you very much.

Aidan O'Neill: Can I just add to that very briefly?

[The Chair]

Very quickly, as we are running short of time and we have a number of questions to come.

Aidan O'Neill: Absolutely. I think the Sewel convention is engaged because, apart from anything else, the reform proposed in the Bill would also require an amendment of section 27B(3) of the Court of Session Act 1988, because that embodies the Cart/Eba test, and that is a statute falling within devolved competence. At the moment, I do not see that the Bill attempts to amend that Act, and I think it needs to do so if it is to apply properly in Scotland. That makes it plain that it is a Sewel convention issue.

Judicial Review and Courts Bill (Fourth sitting)

Angela Crawley Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Anne McLaughlin]

As I said earlier, suspended quashing orders and prospective-only remedies do not apply in Scottish courts, and will not apply, but because these are UK-wide laws to which the people of Scotland are subject, they will be affected. Because Scottish courts can hear cases of UK-wide law, there will inevitably be an increase in the number choosing to be heard in the Scottish courts. After all, if someone knows that they are more likely to get some remedy for winning their case, why would they not choose the court system offering that? I am always happy to showcase all things Scottish, including our legal system, but who will pay for the increased capacity that the courts in Scotland will need if our system is to be clogged up with UK-wide hearings?

I have already explained why we are concerned about statutory presumption, and the hon. Member for Hammersmith has been very clear, so I will not take up time repeating him or myself. I do not imagine that any Bill Committee has a massive audience at home listening to us—although the hon. Member seemed to think differently earlier—but I think this is something that we should be encouraging people to tune into. After all, it is their lives we are talking about. While I do not think we can rival “Loose Women”, I do know that a number of people will be watching, and I think it is always worth explaining, in language that is as accessible as we can make it, what is going on.

So what do suspended quashing orders mean and why are we so opposed to them? On Second Reading, others and I raised the landmark judicial review that took place in 2017, which I think is worth talking about again. The Supreme Court found that Parliament could never have intended to limit people’s right to access justice by charging them fees to use the employment tribunal. It found in favour of the claimants and the quashing order had immediate effect. That meant that the fees were immediately abolished and the Government were required retrospectively to refund anyone who had paid in the past—and quite right. People had been charged up to £1,200 to access this form of justice. The Supreme Court ruled that they should not have been and they were rightly refunded.

However, if clause 1 had been in place, those extortionate fees could have stayed in place until a date determined by the court, so that everyone who required to ask for an employment tribunal between the date of the ruling and the date decided by the court—say, six months hence—would have to pay those unlawful fees of up to £1,200. The Government would then be given the time to rectify the unlawful policy, although this legislation allows the deadline to be varied if they do not rectify it on time; however, the rectification is the interesting bit.

What that means is that the Government would in effect be able to change the law so that the thing that had just been judged to be unlawful—in this case by the Supreme Court—was suddenly lawful. How can that possibly be? The effect in that case is that everyone who had paid the unlawful fee would be out of pocket, never to be refunded. Everyone who then paid in the intervening six months, or however long the Government were given to make the changes, would also be out pocket, never to be refunded. The Government would then change the law so that everyone in future is required to pay those fees of up to £1,200 or miss out on their access to justice, which is most likely the outcome for many people. We are talking about people losing their jobs, possibly wrongly, and being unlawfully dismissed, losing their entire income, and losing their right to access benefits—people who are sacked do not get support for the long term, because it is deemed to be their own fault.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

My hon. Friend is making a compelling case. Thus far throughout our proceedings, on Tuesday and today, we have heard much discussion about “three bites of the cherry” and the notion that people are enjoying some advantageous aspect of the process. What we have not heard about is real cases where individuals have had the right to take cases to this stage and have them challenged, and where the Government have been held to account for their policy. The case that my hon. Friend has raised is a prime example, so does she agree taking away this mechanism will only further inhibit those who need that protection from the Government’s policies?

[Anne McLaughlin]

Yes, and that is what we are talking about—ordinary people who ordinarily do not have the access to justice that people with perhaps a little more money do. The tribunal system, which we will come on to later, is primarily about more vulnerable people, I would say. We have been talking about the people who had the landmark ruling, whom it affected. Even if they had managed finally to access benefits after losing their job unfairly and waiting to access justice, we all know that benefits are not enough to live on. They do not even cover things like the mortgage. Being wrongfully dismissed has a massive impact on someone’s life. Thank goodness for the Supreme Court judgment and thank goodness it happened in 2017 and not 2022, because if it happened in 2022, it would not make a blind bit of difference to anyone’s life, regardless of the outcome. Despite the effort and cost of going to court, a victim is left without an effective remedy, and the Government or public body, although acting unlawfully, faces no real consequences. We must not underestimate the chilling effect that this will have. For that daytime TV audience not used to legalese, what that means is that it will put people off attempting to access justice in the first place, because who would put themselves through all this for no tangible outcome?

The clause creates a perfect storm, with claimants having no incentive to challenge the Government or other public bodies, while said public bodies and Government proceed safe in the knowledge that they can do what they like. It is the risk of being held to account, the potential for challenge, that drives good decision and policy making. That point was made by a number of Opposition colleagues, at least, earlier today.

The measure also undermines judicial discretion. I know that we have already argued about this today, but it is imposing a statutory presumption in favour of suspended quashing orders. The Minister, in trying to reassure us that the statutory presumption does not mean, “This is what judges must do,” while ruling out removing the provision that says, “This is what judges must do,” did nothing to reassure us.

As Liberty points out in its evidence, IRAL considered prospective-only remedies and chose not to recommend them. It also chose not to recommend a statutory presumption for suspended quashing orders. What was the point of the independent review if the Government were simply going to ignore its conclusions? Therefore, we will vote against clause 1 standing part of the Bill.

Judicial Review and Courts Bill (Fifth sitting)

Angela Crawley Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[Anne McLaughlin]

No. I still think that is an absolute nonsense. If we are going to have a debate about the Nationality and Borders Bill and the wickedness of pushing back not boats, but people—human beings are on those boats—I am happy to do so, but I do not imagine the hon. Lady will be happy with that. I am happy to have a conversation about that afterwards.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Is it not the case that, because there are no safe and legal routes available, the Government have made that passage practically impossible, and the associated member states, which also have a responsibility, have made it impossible? Those individuals are falling into the hands of criminal gangs—traffickers—and are being exploited. Therefore, safe passage is not possible for many people.

[Anne McLaughlin]

I absolutely agree with that. I am happy to talk about this because I do not think the Government have a leg to stand on when it comes to how they plan to treat the most vulnerable human beings on our planet.

That takes me to some examples of why the Cart JR is so important. I talked about the case of the Venezuelan man, and a Conservative Member said that it was sad but true that some people would fall through the net. We are not talking about somebody appealing a parking fine; we are talking about somebody who is alive today because he was able to access—

--- Later in debate ---

[Anne McLaughlin]

On the issue of 97% of the cases failing, if the decision-making processes at the beginning of the claim were better, we would not have all those people going through the tribunal system. I absolutely support improving the capacity and decision-making process in the Home Office.

[Angela Crawley]

rose—

[Paula Barker (Liverpool, Wavertree) (Lab)]

rose—

[Anne McLaughlin]

There’s a competition. I will go to the left first.

[Angela Crawley]

Is it not the case that those figures have been widely disputed? We have covered that intensively already. The Government’s parameters for success and failure are defined fairly arbitrarily in comparison with what we would understand or define as a successful testing principle, which is what judicial review is designed for.

[Anne McLaughlin]

I thank my hon. Friend for reminding me of that. I foolishly accepted the 97%, knowing it was not correct.

--- Later in debate ---

[Anne McLaughlin]

What I find offensive is the way in which asylum seekers are treated right now, and the much more awful way that they will be treated if the Nationality and Borders Bill goes through in its current form—or, actually, in any form. I find that utterly offensive. I understand that on a one-to-one basis people will show kindness to individuals, but the hon. Lady is still going to vote for a system that will criminalise people who are desperate enough that they have no choice but to flee from their country, including people in Afghanistan right now whom we have not given safe and legal routes. They cannot wait any longer; they will die if they wait any longer. The hon. Lady will vote to criminalise them, or to offshore them, or to separate them from their families.

I am really pleased and absolutely certain that, one to one, the hon. Lady shows nothing but kindness and respect for people. However, that is very different from voting for a policy that does all the things that I just listed.

[Angela Crawley]

I am grateful to the hon. Member for Sleaford and North Hykeham for also making that point. Is not the essence of the problem, therefore, that the criminality that should be targeted is that of the traffickers and those who are exploiting these vulnerable individuals, rather than the individuals themselves—individuals who, through no fault of their own, when they arrive in the UK, are in an absolutely destitute situation? To criminalise them for using an illegal channel does not get to the root of the problem, which the hon. Lady has already correctly identified.

[Anne McLaughlin]

I could not have put it better myself. I completely agree with that. I do want to go on to look at other people who will be affected. Let us imagine that the Members opposite are not that bothered about asylum seekers and migrants, but they do care about people with disabilities. Currently, 16% of the working-age population live with a disability. That rises to 45% of adults over the state pension age.

Nobody can guarantee that they will not, one day, have a disability—that they will not, one day, be absolutely dependent on being able to access disability benefits. If for some reason they were to be wrongly denied those benefits, as happens far too often, and appeal to the courts, they need to have the right to question the decision-making process because, as we have heard, decision makers do not always get it right.