Judicial Review and Courts Bill

Anne McLaughlin 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 ---

[Anne McLaughlin]

I am a bit confused. The hon. Lady said that taking away Cart judicial reviews would not stop somebody going to the Court of Appeal from the tribunal system, so I just wonder what the route is. Perhaps I have misunderstood.

[Laura Farris]

For an applicant to end up in the Court of Appeal, they would win or lose at first instance and either appeal or be appealed by the Home Office, the upper-tier tribunal would give permission for that appeal, and it would be heard in the upper-tier tribunal. The applicant would either win or lose again, and then they would find themselves appealed to the Court of Appeal. That will not change where difficult areas of human rights law are engaged.

The issue here is where the upper-tier tribunal says, “No, we won’t give permission to hear your appeal,” and then the applicant goes to the High Court and seeks a judicial review application. It is that narrow aspect that is excluded by the Bill. It is important to clarify that, because I think there is some uncertainty about whether human rights are being excluded, and I am glad that the hon. Lady asked me.

[Anne McLaughlin]

rose—

[Laura Farris]

I will make a little progress, because I know that time is limited.

The Opposition frequently push Government Members on the issue of backlog and delay. In the early days of the pandemic, they were right to do so, but I do not think that they can sustain an argument where they simultaneously criticise delays that have arisen because of the pandemic and advocate a disproportionality in an area of litigation where over 95% of claims are unsuccessful, clearly clogging up court time.

The second issue that I would like to address is the new flexibility in quashing orders, and particularly the issue of suspended quashing orders. I read the IRAL report very carefully. It reached its conclusion by reviewing the Court of Appeal’s decision in the case of Hurley and Moore. When it found that there had been a breach of the public sector equality duty, the Court made a declaration of illegality rather than a quashing order because it wanted to give the Secretary of State room to comply. As I see it, clause 1 is in keeping with that.

A number of organisations have written to me to say that, while they perhaps understand the basis of the decision, they are generally opposed to suspended quashing orders where the provisions of a clause will be void. Respectfully, I think that fails to properly engage with what is at stake. The public sector equality duty is a really helpful starting point here. Let us look at the way those cases were litigated through the appeal courts in the early days. We had the library closure cases, with Somerset County Council, Gloucestershire County Council and Surrey County Council all losing public sector equality duty cases. We then had the care home cases, such as South West Care Homes v. Devon County Council, and the mental health cases. All of them were in 2011, 2012 or 2013.

What is most striking about public sector equality duty cases now is that they almost never succeed; actually, I could not find an example of one that had succeeded since 2015. It occurred to me that it is at least possible that the reason the courts will not engage with those cases is that they think it is too onerous to quash. I think that the Bill provides more scope, not less, for some of the progressive principles that can be advanced for a judicial review to succeed if it is not immediately the subject of a quashing order.

I also listened to observations made on the Opposition Benches about retrospective decisions and retrospective effect; what that would have meant in the Unison case and whether the Supreme Court would or would not have ordered the Ministry of Justice to repay the fees paid by litigants who were bringing claims during that period. I just do not think it is possible to read Lord Reed’s comments in that judgment and not find it was absolutely guaranteed that the Supreme Court would order the fees to be repaid. Let us look at clause 1(8) and (9), which set the criteria. The Supreme Court effectively applied them all and found that the repayment of fees was necessary, so I do not think it is a good example.

It is, however, worth recalling the case of HM Treasury v. Ahmed, which the Secretary of State mentioned in his opening remarks. That was a critical case, one of the first cases the Supreme Court heard, because it dealt with important issues of constitutional consequence and public interest. The Labour Government had done what any right-minded member of the public would think was sensible. They found three people who they suspected, but were not convicted, of terrorism offences. As a precautionary measure, they froze their assets. They believed they were entitled to do so under the United Nations Act 1946. They were, in fact, not entitled to do so and the Supreme Court found them to have acted ultra vires and quashed. We know that at least one Supreme Court Justice was nervous about that. Lord Hope said:

“I would however suspend the operation of the orders that I would make for a period of one month from the date of the judgment to give the Treasury time to consider what steps, if any, they should now take.”

What if they had had the power to suspend the order? We know the judgment was handed down on 27 January 2010. By 5 February, Alistair Darling had introduced the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. By 10 February, two weeks later, that had received Royal Assent. It was manifestly in the public interest for Parliament to have the opportunity to legislate on that. How much better if the Court had had the opportunity not to make a quashing order, but to suspend.

That brings me to my final point, which is something I do not think anyone on the Opposition Benches has engaged with at all: what the doctrine of nullity is really about. In private law, the Court has the opportunity to consider and to decide that something is unlawful, but in public law it does not just decide that; it quashes altogether. I am of the view that allowing some discretion, where the effect of a quashing order would potentially run contrary to the public interest or conflict with what might be the will of Parliament, offers a more constructive opportunity to resolve public law problems.

[Anne McLaughlin]

I thank the hon. Lady for again letting me in. Surely this is ordering judges to have a presumption in favour of prospective, rather than retrospective, quashing orders? We are not giving them the opportunity to use it—we are saying, “You will use it as a default position.” That is the problem.

Judicial Review and Courts Bill (Third sitting)

Anne McLaughlin Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Marco Longhi]

It is a pleasure to be able to follow the hon. Member. Colleagues will be pleased to know that I will be trying to hold their attention for only about three or four minutes.

I am certain that the hon. Member will have regard for the assertion by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), that the Bill is a power grab by Government. Would he not agree that that is an odd thing to say, given that the Bill provides the courts with additional powers around remedies in a way that ensures practicality and efficiency, and enables courts to give consideration to the effect of remedies in a way that is not readily applied in the current framework? That surely serves to evidence the shadow Secretary of State’s lack of understanding of what our courts actually need and of the flexibilities built into the Bill. As the Minister said on Second Reading, far from weakening quashing orders, as the shadow Secretary of State said, these new remedies

“strengthen quashing orders and thereby strengthen judicial review.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]

On prospective remedies, I would like to give two examples that show that this concept is not new but has precedence in our legal system. Judges have limited the retrospective effect of quashing orders in some instances in the past, such as in R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015. Therefore, these remedies do not change the position of judges but act to encourage a wider use of the new quashing order modifications.

It is important to state that these remedial modifications are not being pursued to bypass Parliament but are in fact focused on resolving practical issues that arise during judicial review cases. The concept of prospective-only orders is not novel or unique. Under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, courts in the devolved Administrations have a power to make such orders where decisions are outside devolved competence. The Government wish a similar concept to be available in all cases of judicial review in England and Wales.

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

May I point out that there is no presumption in any of the devolved legislation, and that is primarily what we are arguing about here? It is not about having the ability to do this; it is about the presumption that it has to be a default position.

[Marco Longhi]

Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.

These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.

I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).

In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.

We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.

[Anne McLaughlin]

If the Minister simply wants to put more in the judges’ toolkit, and does not expect a presumption in favour—or a default position, as I said earlier—will the hon. Lady support one of the upcoming amendments to stop that presumption?

[Dr Johnson]

I am talking here of a suspended order specifically. Personally, I would trust the judges to have the discretion to look at the case in front of them, the law as it stands and the situation in which they find themselves, and make a measured judgment. Under this clause, they have the discretion to use the orders as they see fit and proper, and I have absolute trust in our judiciary to use them properly.

Ordered, That the debate be now adjourned.—(Scott Mann.)

Judicial Review and Courts Bill (Fourth sitting)

Anne McLaughlin Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[James Cartlidge]

I am grateful to my right hon. Friend, who has considerable expertise in these matters and speaks on them very well. By the way, I am not suggesting that the Natural England case—it did not go to court, but there was a threatened judicial review from an organisation called Wild Justice, which I think Chris Packham is associated with—was vexatious. I make no comment on that. The point is that it would have achieved its aim, which was to have those particular licences declared unlawful, so the claimant would have been successful.

As I said at the time, had the remedies in the Bill been available, the legal advice could have assumed that at least one, or both, would have been used. If the prospective remedy, which we are debating in respect of these amendments, had been used, it would have made the many thousands of farmers, gamekeepers and others who were using those licences for shotguns far more certain that there would not be some kind of action, which from their point of view would be essentially retrospective, regarding the way they had used those licences that could undermine their rights, even though at the time—this is always the key thing about retrospectivity—they would have been using them both in the belief that they were lawful and in good faith. That is why this point is so important.

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

The Minister is talking about giving judges the right to use suspended or prospective-only quashing orders, but that is not what the Bill is about. The Bill is about the presumption that they will use those orders unless they can demonstrate good reason not to. Why not do what he is saying this means, and what other people seem to think this means, and just allow judges to use these orders?

[James Cartlidge]

We will debate the presumption in more detail, because there are a number of amendments to it in the later groups. With the greatest respect for the hon. Lady, I would simply say that that is an erroneous interpretation of the presumption. First, the Bill does bring in those new remedies, irrespective of the presumption, but the presumption is there. It does not force the judge to use them; yes, it highlights the fact that they are there and that we would expect them to be used were it appropriate, but what it ensures is that, whether they are used or not, the reasons and the thinking are written down. In a nutshell, this is about encouraging and expediting the accumulation of jurisprudence, which is incredibly important in a common-law system.

I understand the concern that such orders should not be used to prevent claimants from getting just outcomes. That very point was made on Second Reading by the Chair of the Justice Committee. However, I submit that the clause as drafted already protects against that. The list of factors for the court to consider in using the new remedies, which is set out in subsection (8), includes at paragraph (c) a requirement for the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”.

In other words, it must consider the interests of the person or persons who has brought the judicial review.

In addition, the presumption at subsection (9) requires the court to use the new modifications for quashing orders only where it would offer “adequate redress”. Furthermore, subsection (2) allows the court to impose conditions on any remedy it gives, which is another way that the court can tailor any remedy to ensure it properly serves the interests of justice.

I therefore submit that the ability to limit or remove retrospective effect does have a clear purpose and that there are already sufficient safeguards in the provisions before the Committee to ensure the interests of the claimant are fairly balanced against the interests of good administration. The clause gives the courts the necessary flexibility to tailor its remedies appropriately.

Amendment 35 seeks to remove the subsection that states:

“Provision included in a quashing order under subsection (1) may be made subject to conditions”.

However, the whole point is that the ability to set conditions is very important, so that the court can strike the right balance in how it gives a remedy. For example, to avoid detriment to a claimant or those in the same situation, the court might specify that the defendant cannot take any new action to enforce the impugned decision, but is nevertheless afforded time to amend or correct it by virtue of a suspended quashing order. Removing the court’s ability to set such conditions would not be in the interests of justice or flexibility.

The final two amendments in the group, amendments 40 and 41, were originally connected to amendment 39, which the hon. Member for Hammersmith has withdrawn, and now relate to amendment 12. They are consequential amendments that remove elements of the clause that seek to provide further clarity in respect of the ability to limit or remove the retrospective effect of quashing orders. I agree with the hon. Gentleman that if we were to accept amendment 12, those amendments would logically follow. However, for the reasons I have explained, we do not accept the rationale of amendment 12 and, as such, we also oppose amendments 40 and 41. I urge him to withdraw his amendment.

--- Later in debate ---

Those are my comments on this group of amendments. When we get to the appropriate moment, depending on what the Minister has to say, we intend to press amendment 22.

[Anne McLaughlin]

Suspended quashing orders and prospective-only remedies will not apply in Scottish courts, but because they can and will affect UK-wide laws, the people of Scotland, who remain subject to UK-wide laws until they are independent—I have just disenfranchised myself from everybody on this side, apart from my hon. Friend the Member for Lanark and Hamilton East—are also impacted.

Our primary objection is that there is a statutory presumption written into the provisions. In other words, the default position for judges is expected to be that quashing orders are suspended and prospective-only. Government and Opposition Members, both today and in previous debates, have suggested that the presumption does not curtail a judge’s discretion to use the full suite of available remedies. They are wrong—[Interruption.]

[The Chair]

Order. Can I ask those who are playing with electronic devices to turn the sound down or off? Sorry, Anne—go on.

[Anne McLaughlin]

Thank you, Sir Mark.

On the power to issue a suspended quashing order with the option of prospective-only effect, the Bill says:

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”

Our amendment 27 seeks to remove the word “must” and replace it with “may”. Given that Government Members are claiming that that is what they really mean, they ought not to have any problem supporting the amendment.

The word “must” clearly directs a judge’s reasoning and interferes with judicial independence and discretion, and the Government claim they do not want to do that. It is not just members of this Committee who have said so. The Secretary of State for Justice, the Lord Chancellor himself, said on Second Reading that the Bill

“gives judges greater flexibility in judicial review”.—[Official Report, 26 October 2021; Vol. 702, c. 195.]

As the Public Law Project pointed out, however, the inclusion of the statutory presumption contradicts that stated aim by tying the hands of judges so that they are required to use the new remedies in certain circumstances. If the powers are to be created, they ought to be the exception and not the norm, as the report of the independent review of administrative law suggests and as a number of Government Back Benchers, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill) and the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) also suggested.

The PLP helpfully goes on to say why a statutory presumption is harmful, which is that it sets modified quashing orders as the starting point in all cases, which the judge then deviates from only if the court sees a good reason to do so. Even those who support that statutory presumption can list only a small number of cases in which such remedies might be appropriate. From what hon. Members have said this morning, however, they do not support the statutory presumption aspect, so they will have no difficulty in supporting amendment 27.

I do not know whether this is the appropriate time to say so, Sir Mark, but as the hon. Member for Hammersmith is pressing amendment 22 to a vote, I will be happy to withdraw my amendment and to support his instead.

[James Cartlidge]

It is a pleasure to follow the hon. Lady. I would not characterise the comments of my hon. Friends about judicial discretion as implying that they would therefore willingly see the presumption removed. I will not quite call it cheeky, but that is certainly a presumption of its own about our position on the matter and not entirely correct, as I hope we will discover should the amendment be pushed to a vote—it sounds as if it will be.

In her intervention on the speech by my hon. Friend the Member for Dudley North, and in her speech now, the hon. Member for Glasgow North East, although she clearly has a strong view on presumption, did not deny the point, which is significant in terms of the previous group of amendments, that under the Scotland Act 1998 the Scottish Government—and, under other legislation, the other devolved Administrations too—have a power to make prospective-only orders. That is important. I am not suggesting that the power is used frequently, but it exists, although admittedly without the presumption.

[Anne McLaughlin]

But the Minister’s last point was that it is without presumption, and only in certain circumstances. As I understand it, in certain circumstances in England and Wales those orders can be used anyway. Basically, we are trying to turn things on their head so that judges are told, “This is what you will do, unless you can convince us otherwise.” That is not comparable with the Scottish system at all.

[James Cartlidge]

I entirely accept that the hon. Lady disagrees on the point of presumption, which I will come to in a moment, but in terms of the first group of amendments, which were primarily about the important changes to quashing orders—that is, the prospective-only remedy—all of this underlines the fact that, as my hon. Friend the Member for Dudley North said, these things far from unprecedented in our constitution.

Before I turn to the specific amendments, one of the most interesting points made by the hon. Member for Hammersmith—which he made early on—was that people who bring a judicial review do not do so because they want a declaration; they want a quashing order. They want, as it were, the full bifta, rather than a relatively toothless outcome. On that point, an extremely important case to draw on is Hurley and Moore v. the Secretary of State for Business, Energy and Industrial Strategy. That was an important decision regarding university tuition fees. Lord Justice Elias, one of the key judges, basically made a declaration against a quashing order—I quote the reasons why—saying that it

“would cause administrative chaos, and would inevitably have significant economic implications, if the regulations were now to be quashed.”

In my view therefore—this is important—the very presence of the new remedies, which as Conservative colleagues have said give more flexibility, makes it more likely and, dare I say, easier for a judge to issue a quashing order, rather than being restrained to the extent that the judge would otherwise simply issue a declaration. That is from the perspective of the best interests and the desire of the claimant to get their pound of flesh—their remedy—and to see their justice served. It is important to remember that point.

I turn now to the many amendments in the group. They deal primarily with the presumption, which the hon. Member for Glasgow North East was just talking about, in proposed new section 29A(9) of the Senior Courts Act 1981, and the factors that the courts must consider when deciding whether to use the new modifications—the quashing orders—at subsection (8).

There are two general points to stress. First, the Government’s intention in including both the presumption and the list of factors that the courts must consider is to assist in developing the jurisprudence around the new remedies. As the courts begin to consider cases where such remedies might be used, they will build up a body of case law about when the presumption is or is not rebutted and when the relevant factors apply. That will increase legal certainty, which is to everybody’s benefit. Secondly, I remind the Committee that we consulted both on the presumption and on which factors might be relevant in applying the new remedies. We reflected on the responses to that consultation. Respondents’ suggestions were helpful, particularly in allowing us to come up with the list of factors at subsection (8).

I turn now to amendments 22 and 27, tabled respectively by the hon. Members for Hammersmith and for Glasgow North East, which seek to remove the presumption at subsection (9). The amendments are based on a flawed assumption that the presumption is somehow intended to force the courts into using the new remedies where they are not appropriate. That is not the case. The Bill encourages the courts to use the remedies only where appropriate. It will be entirely up to judges to decide whether they offer adequate redress. If judges consider that they do not or that there is some other good reason not to use them, the court can rebut the presumption.

[Anne McLaughlin]

While the subsection says that

“the court must exercise the powers”

and amendment 27 asks for it to say that the court “may” exercise them, the Minister’s interpretation is that courts may exercise them. Does he understand why we want to amend the subsection? What he describes is what we are trying to amend it to.

[James Cartlidge]

That is a fair point. The words “must” and “may” often have significant meaning in Bills. The Bill’s wording does not seek to force a court’s hand but provides a clear message that Parliament expects to see the new powers used where appropriate. With respect, I think that clarity comes with the Bill’s wording.

However, the presumption also plays another important role in ensuring that the principles and practice around the new remedies are developed quickly. Jurisprudence can be a slow-moving beast, and the presumption will expedite the process and bring greater legal certainty. While removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively, we continue to believe that there is merit in providing this indication to the courts that they should properly consider the use of the new remedial options available to them, and to develop the case law as to their usage more quickly.

I turn now to amendments 24 and 34, the central purpose of which is to change the wording of the test that the court must apply when considering the presumption. The hon. Member for Hammersmith proposes “effective remedy” as an alternative to “adequate redress”, which he argues would be a more stringent test. I fear that we are getting pretty close to what we call semantic arguments. The Government’s intention is that the remedies are used only in circumstances where it is appropriate. We are not seeking to deny or restrict justice to claimants. I am not, therefore, persuaded that his wording would result in a higher test or make any material difference to the clause.

Amendment 24 also seeks to ensure that, in considering the “effective remedy”, the court considers the interests of not just the claimant but other affected persons. The way in which our “adequate redress” test is framed in no way prevents the court from considering the impact on persons other than the claimant. Indeed, when it is considered in conjunction with paragraph (c) of the list of factors at subsection (8), I contend that that is already captured by the clause.

Turning to amendment 23, which would remove the presumption contained at subsection (9) and replace it with a precondition—I think we are moving into smorgasbord territory—I submit that that would constitute a significantly more restrictive approach, which would limit the court’s flexibility to adapt the remedies to the situation before it. The amendment is redundant since the current presumption and list of factors provide an appropriate guide to the use of the new remedies. I do not see how it would make the situation clearer than the current drafting.

Let me turn now to a series of amendments that relate specifically to the list of factors at subsection (8), which is crucial to the operation of the new remedies. Amendments 13 and 21 seem to suggest that we need to tell the courts that the remedies that they use in judicial review cases should be used in the interest of justice and add a vague direction that

“good administration is administration which is lawful.”

The problem here, which confuses me, is that the implication of what the hon. Member for Hammersmith is suggesting appears to be that the courts would not otherwise act in the interests of justice or consider that lawful administration is a good thing. I do not think he necessarily trusts the courts to understand those rather fundamental concepts.

I argue that these amendments would add nothing of value to the Bill, as judges will retain the ability to use remedies in a way that they feel offers adequate redress for the claim brought. Our new remedies do not seek to change that. We are also struggling to find a clear justification for why a theoretical inquiry into the relationship between “goodness” and “lawfulness” needs to be made. Those concepts are very open to interpretation, and the amendment gives no indication as to their meaning in this context, while, in contrast, the current drafting makes the meaning clear and focused on practical issues.

--- Later in debate ---

I cannot in all honesty support the clause just on the basis of the arguable case for suspended quashing orders. Therefore, subject to what the Minister has to say, we will not be supporting clause 1 and will vote against it at the end of this stand part debate.

[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.

[James Cartlidge]

It is an interesting thought that the way we are going to measure the success of our debates is whether we can compete with “Loose Women” on the viewing figures front. I think that that is highly unlikely, no matter how wonderful our language and discourse, but if there is someone who has watched all the way through—good luck to them—I think that it would be hard for them to refute the idea that we have had a pretty thorough debate on the key issues of clause 1, which is very important.

I will answer one point from the hon. Member for Glasgow North East, and this is really where the disagreement, to which the hon. Member for Hammersmith was referring, exists about the extent to which we put our faith in judicial discretion. Yes, there is the point about the presumption, but as I said, that is about jurisprudence, from our point of view. To go back to what the hon. Member for Glasgow North East said about, I think, the case to do with tribunal fees, she was arguing in effect, “They would not have been refunded if these remedies had existed, because they would have applied prospectively,” but that would be only if the judge chose to use that remedy. That point is absolutely fundamental. There would be absolutely no requirement for them to do so.

[Anne McLaughlin]

The Minister keeps saying that, and I keep saying this, so I will just keep saying it. The legislation says that judges must—they must—use those orders unless they can demonstrate otherwise. Why not just say that they “may” do this, and give them the opportunity to do it? Otherwise, they will have to dig deep and find lots of reasons that are acceptable to the Government for not using it.

[James Cartlidge]

I did address that point in some detail in my speech on the last batch of amendments but one, but I will repeat the point. We want there to be certainty that judges should be considering these remedies, but that does not mean they have to use them. Rather, they should state the reasons, whether they do or do not, so that we build up that log of jurisprudence, which, as I said, is very important in a common-law system.

There has been an in-depth debate on this clause, so I do not intend to go much further. I just want to make one more important point. As far as Government Members are concerned, these measures strengthen quashing orders by giving judges more flexibility and more tools in the judicial toolbox, and thereby strengthen judicial review. On the question of whether they should be used, of course that is a discretionary matter.

Perhaps the issue is this: we see the glass as half full. We do not feel that the new measures would be used detrimentally for our constituents. On the contrary, we think that they would be used in ways that support better public administration while still protecting the right of the claimant to obtain their justice, but ensuring that quashing orders do not have detrimental side effects when used. That is why I say that we are not forcing the judges’ hands.

Judicial Review and Courts Bill (Fifth sitting)

Anne McLaughlin Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[James Cartlidge]

My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.

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

If that is the case, and if the Minister is so concerned about the court backlog, does that mean that he will not support the Nationality and Borders Bill, which attempts to criminalise asylum seekers simply for coming to this country because they could not find safe and legal routes, at an estimated cost of an extra £400,000 per year, clogging up the court system even further?

[James Cartlidge]

It is a fair point, but the hon. Lady and my colleagues may be interested to know another statistic that we have discovered: the average time that these cases take from coming to court to reaching a conclusion is 88 days. That means that hundreds of cases are taking three months to be heard in the High Court. On that basis, we would not bring in new measures to toughen up sentencing on, for example, serious sexual offenders. If we did that, more people would potentially end up being found guilty of those crimes and going to prison for longer, which costs. That is precisely why we are taking measures to free up capacity. For example, in a later part of the Bill we will be remitting more cases from the Crown court to the magistrates court, because it is in the Crown court that those serious crimes will be heard.

[Anne McLaughlin]

rose—

[James Cartlidge]

I will take a second bite at the cherry from the hon. Lady.

[Anne McLaughlin]

I thank the Minister for that second bite. I know he was not deliberately conflating serious sexual offenders with asylum seekers, but I really want to make that distinction. We are talking about people fleeing for their lives from terrible situations, and in the same sentence he compares them to serious sexual offenders. Does he agree that there is no conflation there?

[James Cartlidge]

Of course. That is not the point I was making. To be absolutely clear, the point I was making is that we still have to deal with serious acts of violence and crime, whatever the crime may take place. If we do that, our actions may put more pressure on the courts, but I think our constituents would support that. Moreover, if someone comes to the tribunal system seeking immigration to this country, they will have two bites at the cherry—to use that phrase again—which is a consistent position.

[Anne McLaughlin]

indicated dissent.

[James Cartlidge]

The hon. Lady shakes her head. [Interruption.] She wants a third bite of the cherry. Well, I am going to ration them a bit, because there are oral questions soon. An inordinate amount of judicial resource is being used to review decisions of broadly equivalent judges who, importantly, are correct in refusing permission to appeal in the overwhelming majority of cases. However, if we take this away in immigration cases, there are still two bites at the cherry, which is consistent with article 13 of the European convention on human rights.

[Anne McLaughlin]

rose—

[James Cartlidge]

I will be very generous and offer the hon. Lady a third bite.

[Anne McLaughlin]

I have just served on the Nationality and Borders Bill Committee. I did not get a break between that and this Committee—in fact, last week the two clashed—so I know that what the Minister says is not the case. If asylum seekers arrive here by irregular means—in other words, if they come by boat because they cannot find safe and legal routes—they will not have an opportunity to apply for asylum, because they face offshoring and prosecutions. They will end up in the criminal court system before they even have an opportunity to go through the system that the Minister is discussing.

--- Later in debate ---

[Tom Hunt]

It is a pleasure to serve under your chairmanship, Mr Rosindell. It is certainly the first time; I would have remembered otherwise. I will talk about clause 2 in a general sense. As I mentioned to my hon. Friend the Minister in my intervention, for which I was very grateful, there is a certain irony here. We have spent so much time debating the measures that the Government have proposed to free up capacity in the court system, but they are being opposed by the Labour party, which then has the cheek to hold an Opposition day debate on Monday purely about the court backlog.

The refugees who are arriving here illegally are potential refugees. Many will not be; many will be economic migrants who are fleeing from France, a safe European country. The 2011 Supreme Court decision that led to Cart JR in relation to these cases was a retrograde step, and in some respects has given judicial review a bad name. Judicial review is an important part of the justice system, but the influence of Cart JR has been negative and has given judicial review, which is very important for our justice system and our democracy, a bad name.

There is a debate about whether the success rate for Cart JR cases is 0.6%, 3% or 5%. A success rate of 5% is still extremely low, compared with 40% or 50% for other types of judicial review. We must bear that in mind. We hear that there are 750 such cases a year, at a cost of £400,000. I raised the issue of the financial cost last week, and this was belittled by a witness, who said that the cost was

“the same amount that DCMS spent on its art collection in 2019-20.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 52, Q75.]

Of course, that is not the key point. The key point is the wider pressure on the court system and on the time of our High Court judges. It is very clear that the pressure that Cart JR puts on the system makes it more difficult for our court system to get back on its feet after the impact of the pandemic. I am pleased with the practical steps that are being taken in other areas of the Bill to help with that.

This issue of the first, second and third bites of the cherry is interesting. I have not heard any practical reasons why immigration cases should be treated so differently from other cases by having a third bite of the cherry. We hear that, if there is one successful case, and even if only 2% or 3% of cases are successful, that is enough to justify Cart JR. If that is the only argument, why do we not have a fourth bite of the cherry, or a fifth? Can we say with certainty that, if we put the 97% of cases that are unsuccessful in the High Court to the Supreme Court, there will not be one or two that are successful? If one or two were successful, would that justify endless bites of the cherry? At some point, a balance must be struck. There is a limited amount of resources and significant pressure on the system. It is not unreasonable for the elected Government to make a determination about what is and is not reasonable. Even if the success rate is 5%, allowing endless bites of the cherry is not reasonable. It is not a justifiable pressure on the wider system.

Last Thursday, we also heard from the shadow Minister about many instances in which an individual had been successful in a Cart JR case in the High Court. Of course, such cases would have contributed to the 3% or 5%, but we would be here for about a week if we were to hear about each individual case that formed the 95%, or the 97%. Let us be absolutely clear: many of those individuals would be having a pernicious influence and a negative impact on our country—they would be illegal immigrants—and, frankly, the sooner we can get them out of the country, the better.

[Anne McLaughlin]

The hon. Member is talking about the sooner we can get rid of these people out of the country. One of the people I spoke about on Second Reading was a Venezuelan man who fled after state actors murdered a friend of his. He knew that he was in danger because he had witnessed that. The first-tier tribunal and the upper tribunal did not interpret his evidence correctly, according to the subsequent judge, after the Venezuelan man successfully got a judicial review. He is surely one of those people whom the hon. Member is talking about—the sooner that we can get rid of these people—because he would lose the right to have his appeal judicially reviewed, if the Member gets his way.

[Tom Hunt]

The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.

I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.

--- Later in debate ---

[Andy Slaughter]

I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.

I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:

“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”

That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that

“even a single case can have wide ramifications.”

If that applies to judicial review more widely, why does it not also apply in Cart cases?

Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.

[Anne McLaughlin]

I am told it will be a great pleasure to serve under your chairmanship, Mr Rosindell. I am sure it will be.

As I often say in this place, we never know who is watching. We probably do not have a huge audience watching this debate, and I understand it is going out in audio only at the moment, unless that has been fixed. However, some people will be listening or watching, so it is worth repeating exactly what is happening here so that lay people understand. I will briefly go over it.

If an individual feels that a public body—for example, their local NHS, the Department for Work and Pensions or the Home Office—has failed to correctly apply the law in making a decision about their case, they can appeal to the first-tier tribunal. If that finds against them and the individual believes that there is an error of law, perhaps by overlooking vital evidence or by misinterpreting the rules, they can apply to the first-tier tribunal for permission to appeal at the upper tribunal. If the upper tribunal refuses to appeal the decision, right now that person can ask to have the decision judicially reviewed.

All sorts of criteria have to be met. Someone does not simply say, “Can I have a judicial review?” and get it, but right now they can at least apply. What we are discussing today—clause 2—would take that right away from them. There has been talk about how many bites of the cherry someone can have, but only the tribunal system is having the independent oversight of judicial review removed. All other judicial reviews will continue, and the Minister said that in his speech. I am not sure that is something to be proud of, because we know that the tribunal system often deals with the least powerful in our society. That is who we are removing the access and the right to justice from.

As the Law Society of Scotland has pointed out, decisions on appeal at the tribunal are often taken by a single judge based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, nor to answer any questions that the judge might have. In the last week, we have heard all sorts of arguments about how the powerful—in other words, MPs—have to have more opportunities to plead their case. In terms of the Committee on Standards, a huge number of Conservative MPs talked about how the case was decided on the paperwork, which it was not—that is not quite true—but a lot of the evidence was considered in writing alone, which is somehow wrong when it comes to powerful MPs, but right when it comes to people in vulnerable positions. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.

The Immigration Law Practitioners Association collated 57 real-life case studies of people who had accessed the right that they will no longer have once this legislation is passed. The case studies included a child who applied to remain in the UK in order to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions whereby, if deported—we have talked about the man who witnessed a murder in Venezuela—their lives would be at risk or they would be separated from their family. If we go ahead with this measure, that is what would happen, and I do not know how anybody here in Committee can justify that.

It is important to explain for anybody not au fait with the legal system that we have different layers of decision making because sometimes decision makers get it wrong. I will give a couple of examples. I sat on the Committee that considered the Nationality and Borders Bill, so I was not here for the first sitting of this Committee. I was astonished to read that a member of this Committee asked why any judge’s decision should be questioned. A fundamental part of our justice system is that we accept that decision makers, including judges, get it wrong and have to be questioned.

The justification given by the Government for ousting Cart and Eba in Scotland is the high volume of applications versus the real number of successful outcomes. Let us look at that. The evidence to support that position was so flawed that the Office for Statistics Regulation launched an investigation. It found that the real success rate was at least 15 times higher than the Government’s figures. Why did they use those figures in the first place? Was it because they knew that if people understood just how many people it does affect, they might have less sympathy with their position?

--- Later in debate ---

[Tom Hunt]

A number of amendments have made it quite clear that the key issue is not the financial cost but the wider significant pressure that is put on limited, finite judicial resources. Will the hon. Member address that point?

[Anne McLaughlin]

I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.

[Dr Johnson]

Will the hon. Lady give way?

[Anne McLaughlin]

Briefly.

[Dr Johnson]

It is therefore the hon. Lady’s position that the Government should give legal passage to those people who are arriving on boats from France—perhaps put on ferries for them? Does she recognise that that could lead to increased trafficking of people and increased suffering?

[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—

[Tom Hunt]

Will the hon. Lady give way?

[Anne McLaughlin]

Absolutely. I would love to hear what the hon. Gentleman has to say.

[Tom Hunt]

If that is the case, does the hon. Lady support a fourth, fifth or sixth bite of the cherry? How can we guarantee that at the third bite of the cherry we are going to get everyone right?

[Anne McLaughlin]

The “third bite of the cherry” is not about whether the case is correct or the person’s claim is correct; it is about whether they got the correct process and mechanics in the first place. If they were not able to access justice in the first place, they should have the right to have that heard by a judge.

[Tom Hunt]

I take the hon. Lady’s point about the distinction in respect of what we are looking at, but people can still get that wrong. Does she support the fourth and fifth bite of the cherry?

[Anne McLaughlin]

I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.

There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.

[Sir John Hayes]

I wonder whether the hon. Lady will provide some clarity about the parameters within which she believes the system should work. Presumably, she cannot be saying that there should be unlimited rights of appeal. She cannot be saying that there should be no structure around how people can access courts and use them. She cannot be saying that every person who arrives in Britain should be able to appeal again and again. There must be some limits, some parameters, some rules and some grounds. What are they?

[Anne McLaughlin]

We have them already. I am perfectly happy with what is in place. It is the right hon. Gentleman’s Government who seek to change that and take away people’s access to justice. It is not me who is trying to change it. I am the one trying to stop them changing it and taking away people’s rights.

I will tell the Committee about another case. The claimant was in a relationship with a British citizen, and they had two children who were also British citizens, but the claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review—the thing that Government Members want to take away from these people—the decision was overturned. The upper tribunal allowed the appeal under article 8. However, without the Cart judicial review, the family would have been separated.

The final person I want to talk about, from the Public Law Project’s evidence, is a Sri Lankan national who feared persecution, partly because of his involvement in diaspora activities in the UK. His perception was that he would be viewed as someone who was seeking to destabilise the integrity of Sri Lanka. It was argued that the first-tier tribunal judge had acted procedurally unfairly in refusing to consider all the evidence, including valuable video evidence, when deciding that the appellant was not actively involved in diaspora activities as claimed. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but was finally granted on appeal, where it was considered that there were legal and compelling reasons for granting permission. An order was made quashing the upper tribunal refusing permission.

[Sir John Hayes]

I wonder whether the hon. Lady will give me one more bite of the cherry.

[Anne McLaughlin]

I will finish this story. Before the hearing in the upper tribunal, the Home Office conceded the appeal and accepted that the appellant was a refugee. If Cart had not been an option, that man would have faced deportation and almost certain persecution. Having lived and worked in Sri Lanka, and having kept in touch with many people there and many Sri Lankans living here, I can tell Members that that man almost certainly would not still be here had he been deported and denied access to Cart judicial review—the thing the right hon. Gentleman wants to take away. I will let him come in and explain that.

[Sir John Hayes]

But 97% of these cases fail, and they fail on the grounds that the hon. Lady says she supports—she supports the existing system, as she made clear in her answer to my previous intervention. Given that she supports the existing system, and 97% of these cases fail, does she not recognise that something is going badly wrong?

When cases fail in respect of immigration, does she support the rapid deportation of people who have been through the system, sometimes more than once, and failed and had their case found to be wanting? Does she want those people who are found to be acting illegally to be deported, as we all do?

[Anne McLaughlin]

I have lost track of all the questions.

[Sir John Hayes]

I said 97% of cases fail. When they fail, those people have exhausted the legal avenues that the hon. Lady says she supports—the current system, criteria and means by which people can make their case. When immigration cases fail, does she support the speedy deportation of those people?

[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.

[Paula Barker]

The hon. Lady has been generous with her time. Does she agree that, as we heard in the evidence session, Cart reviews are not just about immigration? They are also about sexual justice cases. It is starting to feel as if the Government wish to have a further bite of the cherry in their hostile immigration policy.

[Anne McLaughlin]

That is an excellent intervention and I absolutely agree. Interestingly, my notes state that we are not just talking about immigration. I agree about the hostile environment; it is vile. If I am right in saying that most of them could not care less about migrants, let us talk about cases of access to vital benefits for people with disabilities and others facing destitution and homelessness, who will be affected. Those are people who have been left without a last line of defence. This legislation will affect all four chambers of the upper tribunal. Individuals will no longer be able to apply to the High Court.

[Dr Johnson]

The hon. Lady said that she believes that we do not care about migrants. I find that deeply offensive. As a paediatrician I have worked with children who have been alone—unaccompanied asylum seekers—examining them and looking at their injuries and scars. We do care very much about migrants and reducing people trafficking—this evil, barbaric trading of people, which we need to stop.

[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.

[Sir John Hayes]

On a point of fact, could the hon. Lady tell us how many Cart cases are brought by disabled people?

[Anne McLaughlin]

Strangely enough, no I cannot. Can the right hon. Gentleman tell us?

[Sir John Hayes]

The hon. Lady must know that over 90% of Cart cases are immigration cases, although it is possible that some of those people might themselves be disabled. If she then takes the fewer than 10% of cases that are not immigration cases, a small minority of those will be of the kind she is describing. Of course, the hon. Lady is right that when disabled people are disadvantaged and need recourse to law, they should have it. However, the idea that she is promulgating—that somehow the Government are acting in a way that is disadvantageous to significant numbers of disabled people in the way she is suggesting—is not only inaccurate but irresponsible.

[Anne McLaughlin]

I do not think I suggested that there were huge numbers of cases of people with disabilities. What I said was that there are huge numbers of people with disabilities and huge numbers of people who could have disabilities in the future, and that they will be denied access to justice if they do not get justice first time around. That happens so often.

[Sir John Hayes]

We could all have disabilities in the future.

[Anne McLaughlin]

Can I sit down and chat as well?

[The Chair]

Is the hon. Lady giving way?

[Anne McLaughlin]

Is the right hon. Gentleman asking me to give way?

[Sir John Hayes]

I have given up.

[Anne McLaughlin]

I am very pleased to hear that the right hon. Member has given up. Feel free to intervene again. [Interruption.] I will say that, from a sedentary position, he says that there are none so blind as those who will not see.

[Sir John Hayes]

I was quoting scripture.

[Anne McLaughlin]

The right hon. Member can quote scripture at me all he likes. If we are going to talk about scripture, then we are going to talk about Christianity, which is surely about compassion. To say that it does not matter that this will affect people with disabilities because there are not that many of them who will be affected is just wrong.

[Sir John Hayes]

I did not say that.

[Anne McLaughlin]

That is what he implied. Anyway, I wanted to move on to ouster clauses.

Ouster clauses put decisions beyond the reach of the court. Despite the Government backing down after an outcry on proposals to include them in the Bill, they said:

“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

I agree with Amnesty’s proposition that the Government are explicitly using it as a test run for ouster clauses, and that it is a blatant and disturbing attempt to get rid of judicial oversight in other policy areas. As it also says, “The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and separation of powers.”

I suggest that we heed the warning of the Law Society of England and Wales that, “It is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy.” They do not say anywhere, but there are not many of them, so let us not worry about it.

Judicial review may be inconvenient for the Government at times, but that is no justification for its removal. The implications of the Bill could be far-reaching, given the legal framework and its potential future use. The Bingham Centre for the Rule of Law, which I hope Members respect, said, “it is reasonable to say that ouster clauses are at odds with the rule of law.”

Finally, last week, in reference to the now former MP about whom the Standards Committee produced a report—I think all Members know what I am talking about—the Leader of the House said:

“It is not for me to judge him—others have done that—but was the process a fair one?”—[Official Report, 3 November 2021; Vol. 702, c. 938.]

That is the crux of judicial review. If the Government believe that we do not need access to Cart judicial review, did those who used it to win and get justice—such as the Venezuelan man fleeing for his life, the child requiring lifesaving treatment or the family who could finally be together—not require it, or were they not worth it?

[Nick Fletcher (Don Valley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Rosindell. I will speak briefly about Brexit, which, as we know, happened a couple of years ago. After speaking to many constituents, one of the main reasons that they voted for Brexit was immigration and control of the borders. It is still a huge topic when I go door to door every week to speak to my constituents. Having got Brexit done, the Government said that they would do everything in their power to take control of the borders. This important Bill is part of that. Opposition Members should remember that, although they oppose the Bill, many of their voters agree with it. It is important to get it through.

[Anne McLaughlin]

Does the hon. Member think that politicians and political parties should slavishly follow public opinion, or that they should propose their own values and principles, based on human rights, and seek to take people with them and change public opinion?

[Nick Fletcher]

The Government, and we as MPs, should listen to our electorate. I believe the Government are doing that. I understand that it is an extremely complicated subject, but I am afraid that when my voters see planes full of convicted criminals get last-minute reprieves and are taken off those planes, they lose faith in this place, in Opposition Members and in the entire system. It costs hundreds of thousands of pounds, too. I understand and appreciate that people sometimes fall foul of the system, but we have heard that it happens between 0.22% and 5% of the time—that is what we have heard. We must look after our borders and keep them under control.

--- Later in debate ---

[Nick Fletcher]

I thank my right hon. Friend for that, but I want to move on because I am conscious of time.

I do understand that these people that are coming over here are leaving places that are in a terrible state and what they are leaving is sometimes awful, and I do have full sympathy for that, but there is a legal way of entering this country, and I believe that everyone should take the legal way into this country. When people get into these small dinghies they know they are entering our country illegally. If they are entering our country illegally, then they must have to deal with the consequences that go with that.

[Anne McLaughlin]

On a point of order, Mr Rosindell. I am sorry to interrupt the hon. Gentleman, but is this within the scope of the Bill? This is not a Bill about borders or preventing people from coming in.

[The Chair]

I think we will let the hon. Gentleman carry on.

Judicial Review and Courts Bill (Eleventh sitting)

Anne McLaughlin Excerpts

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

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

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

[James Cartlidge]

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect”

and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

--- Later in debate ---

[Anne McLaughlin]

In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Anne McLaughlin]

I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

[James Cartlidge]

The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

[Anne McLaughlin]

I am not sure what I am supposed to say, but I do not wish to withdraw the amendment.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.

Clause 48

Short title

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Anne McLaughlin]

I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

[Sir John Hayes]

I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.

[Anne McLaughlin]

I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.

[James Cartlidge]

This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.

The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.

My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.

I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.

On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.

The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.

The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.

As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.

--- Later in debate ---

I will leave my comments there. It has been a great pleasure to be part of this Bill Committee, which is now coming to a close, and to support this Bill and my right hon. Friend the Member for South Holland and The Deepings.

[Anne McLaughlin]

Encouraged by the Minister, I have decided that I will say a few words, even if none of them are original. Most of what I have to say is in agreement with the hon. Member for Hammersmith, but it is good to put the opposition of the SNP on the record.

What would this new clause do? Unless there are compelling reasons to the contrary, this new clause would prohibit the use of oral evidence in judicial review and would also prevent courts from ordering any public body to disclose evidence in anticipation or during the course of judicial review proceedings. As we have heard, oral evidence is already rarely used in judicial review proceedings, but the courts retain a discretion to permit oral evidence where it is considered essential to the case. My understanding is that judges use that discretion appropriately, and frequently deny requests to cite oral evidence unless, as I have said, it is considered essential to the case. I am not aware of any indication that the system has the problem that the proposals seek to address.

I wonder what adding a requirement for compelling reasons would do to the existing position. It could be that that is just an alternative translation of the existing position. One compelling reason for adducing oral evidence would be that it is necessary to do so. If that is the case, the new clause is not needed. If the proposed compelling reasons requirement is seen to raise the threshold for which oral evidence is admissible, I think we should all find that problematic. Judges are already only allowing such evidence when it is considered necessary to do so. The clear result of the proposed change would be that oral evidence that is necessary for the fair resolution of the case would not be admitted. That surely cannot be acceptable to the Minister.

New clause 5 would also bar judges from ordering disclosure of evidence. Again, such disclosure is used only when absolutely essential. Judges order disclosure only when that disclosure is vital to resolve the case fairly. In many respects, the disclosure obligations act as a way of ensuring that the duty of candour is complied with where parties must submit to the court all relevant evidence and information relating to the case. In the vast majority of cases, both parties will comply, but where they do not the judge can ensure compliance by using disclosure powers. Weakening those disclosure powers would, in effect, weaken the duty of candour, which is a vital aspect of fairness in judicial review. If public bodies and Governments believe that they do not need to comply with that duty, the position of claimants would be severely weakened in judicial review proceedings. We should increase access to justice, not make it increasingly pointless.

[James Cartlidge]

It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.

In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.

The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.

The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.

I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.

As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.

In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.

--- Later in debate ---

[Sir John Hayes]

Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.

I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.

[Anne McLaughlin]

Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.

I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.

This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.

I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.

[James Cartlidge]

Further to that point of order, Mr Rosindell. I did not mention the hon. Member for Stockton North; I hope he recovers. I also wish to thank my officials, who have been excellent—very high quality—for my first Bill Committee. I hope we keep up the good work as we move forward. I am grateful to everyone who has helped us to reach this point.

Judicial Review and Courts Bill

Anne McLaughlin Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[Sir John Hayes]

The court can take evidence, but what it should not be doing is fishing for further information, of a wider variety, which opens up consideration of the original process, rather than checking whether that process was right and proper; it is a subtle difference but a fundamental one in terms of the change in the way courts have gone about their business.

Our new clause addresses this issue, as the Minister will know. Jonathan Sumption is the judge who perhaps more than any other has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:

“It is the proper function of the Courts to stop governments exceeding or abusing their legal powers.”

That is absolutely what JR should be, but I fear that it is being compromised by the changes that are taking place as a result of judicial activism. So, mindful of the Attorney General’s advice on this and of the fact that the Government clearly are in tune with that advice—otherwise, they would not have introduced this Bill in the first place—I urge them to accept the amendments, in order to make this Bill be as good as it can be. Rather than waiting for another bus to come along, we should get on this one and get to the destination we all seek.

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

Much of this Bill has no impact on Scotland or our separate courts and legal system, so our amendments and my comments are focused on the parts that do, which primarily deal with judicial review. The parts of the Bill I will address today are not just bad; they are unnecessary and dangerous, and they lay the groundwork for the Government to insulate themselves and future Governments from proper scrutiny and accountability. I am sure that is on their personal wish list given current events, but we ought to make policy for generations, for everyone and not for one iteration of one political party.

I sat through 11 sittings of the Public Bill Committee and waited for the Government to persuade me that, for example, removing Cart JR was necessary, but instead I heard odds and sods of anecdotal evidence, lots of legal jargon and the phrase “three bites of the cherry” a total of 62 times, with the implication that somehow those using Cart JR had greater access to justice—that simply is not true. Cart JR is not about saying, “I don’t like the decision you've come to, let’s try again for a different judgement.” It is about looking at the situation where, first, a serious error of law may have been committed in the first-tier tribunal, and then the upper tribunal has failed to recognise and correct the error. It could be that the first-tier tribunal failed to consider or misinterpreted the evidence, or that the facts are inconsistent with the decision, but the point is: it happens, mistakes are made and Cart JRs provide a vital safeguard to correct these errors in cases where the stakes can be incredibly high. Rather than this being a “third bite of the cherry”, the reality is that the first bite was not even a slither—a mistake was made. Mistakes do not just affect the person in question; the ramifications are wider. Similarly, Cart JRs not only give one person who has appealed the opportunity to have their case considered properly, but they catch out errors and injustices, benefiting the system as a whole. Cart JRs have been used to ensure that disabled people are given the right benefit entitlement; they have stopped people being made homeless; and they have prevented the deportation of people to countries where they faced certain death. I am currently waiting to attend a first-tier tribunal on behalf of a family member. Given my knowledge of her and of the social security system, I am 100% certain of her entitlement and equally certain it will only fail if a mistake is made when considering the evidence. If that happens, surely my family member deserves the right to have it rectified—surely everybody has that right.

The thing is: the Government know that the impact will be far greater on those who are most vulnerable. In their own impact statement for this Bill, they admit that abolishing Cart would mean that

“those who do lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”

So anyone voting for this ought to be aware and be honest with their constituents that they are consciously voting to the detriment of their constituents with protected characteristics. It is estimated that this will save only £364,000 to £402,000 a year. That is the cost of protecting the rights of some of the most vulnerable people. It is not much to ask for, is it? Let us not pretend that this is about being prudent with the public purse after writing off £4.3 billion of fraudulent covid claims last year.

We will vote against this terrible Bill, but if it does go ahead, our amendments 42 and 43 would protect the Scottish courts and tribunals from clause 2. We in Scotland do not want it, the legal profession does not want it, the Scottish Government do not want it, and I guarantee that the people of Scotland do not want it. This Government are trying very hard to demonstrate their alleged respect for Scotland—in words if not in actions—as the Scottish Government lay the groundwork for an independence referendum; some would say, because of the independence referendum. Well, now is their chance. Now is the chance for all the parties in this place to show Scotland just how much respect they have for our separate and distinct legal system and our right to protect it, and ourselves, from this legislation.

My final thoughts on clause 2 relate to the way in which the Government intend to make this happen—the legal framework. The Government say that the use of an ouster clause will set a precedent for removing certain cases or areas out of the scope of judicial review, but what does that mean? It means that in future they intend to cherry-pick areas that they would rather not see judicially reviewed, which sounds every bit as dangerous as it is. The rule of law and the separation of powers are hallmarks of an effective democracy; we cannot allow the Government to pick and choose where and how they face judicial scrutiny. As Liberty reminds us in its briefing, this Bill is passing through Parliament at the same time as the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Elections Bill, to name but a few. Now more than ever, we need the ability and deserve the right to hold the Government and public bodies to account.

Clause 1, on suspended quashing orders and prospective-only remedies, does not extend to Scottish courts and will not apply directly, but it will affect UK-wide legislation to which we are all subject. It will also mean that many more people across these islands may choose Scottish courts, and while I am always happy to promote Scotland and our separate legal system, there may be a capacity issue that has not been discussed or even considered.

Along with others, I have raised the landmark Unison judicial review of 2017 a number of times. The Supreme Court agreed that the fees for access to justice via employment tribunals were unlawful, so everyone who had paid them was refunded, and the Government were no longer allowed to charge the fees from the moment of that judgment. Let us consider what would happen if the Bill were passed and if, instead of seeking a judicial review in 2017, Unison did so this year and, crucially, secured the same decision: the decision that the workers were right, and that what the Government were doing was unlawful. The difference is that if this Bill is enacted, no one initiating a judicial review will have their fees refunded and no one who has already been forced to pay up to £1,200 for an employment tribunal will be refunded either, despite the court’s agreeing that they have been subject to something unlawful. Anyone subsequently requiring an employment tribunal will still have to pay the unlawful fees, and in the meantime the Government will be able to tweak the legislation and make the unlawful lawful. Who would or could go to the expense and trouble of seeking a judicial review given the prospect of no remedy, no justice, and no change in their or anyone else’s situation?

The delaying of a quashing order is, in certain circumstances, the appropriate path to follow, and that is why the courts already have that option. The issue is that it is currently an option, and the clause seeks to make it a presumption. The Independent Review of Administrative Law, which has been largely ignored in respect of its recommendations for judicial review, suggested that “giving courts the option” was enough, but here we see the Government determined to fetter judicial discretion and tie the hands of judges. Our amendment would ensure that it would once more be the case that judges “may” rather than “must” use such delays, and if the Government continue to argue that they are not trying to tie the hands of the judges, they will surely support it tonight.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call Helen Morgan to make her maiden speech.

--- Later in debate ---

[Sir Robert Neill]

I know we are straying towards the edge of the topic, Madam Deputy Speaker, but I think this is germane, because to make these reforms to the court system work, we have to invest in the professionals who operate in it. I welcome Sir Christopher’s report; it is immensely well researched and immensely well written. The truth is that within the uplift in the Department’s funding, there is scope, I say to the Minister, to implement Bellamy over the period of the spending round. I know that he has had constructive engagement already with Sir Christopher, and I urge him and his colleagues to continue to do so. We should thank Sir Christopher for his work.

I hope, therefore, that we will support the Government amendments. I hope that the Opposition will not press their amendments to a vote, but they raise legitimate issues that the Government should take on board. We all want to co-operate on having a court system that works. Efficiency should not be a matter of partisan debate, because justice must continue to be there, and the more settled arrangements we have across the House, the better confidence will be.

Finally, I express my thanks to magistrates. I have many friends who have served as magistrates. They do a very great public service, but the more magistrates we can get who are younger, the better. We have done pretty well on gender diversity, but we need to do more about recruiting magistrates from ethnic minority communities. That must continue to be a priority. I hope that that will be done by valuing the job; by giving them the resources, and that includes the physical resources and the buildings they sit in, many of which are pretty woeful; by a more imaginative approach to local justice—to where custody cases, for example, are not necessary and to listing cases nearer to people’s homes—by making it easier for witnesses to get to courts, because that was a concern that we raised in our report on access to justice some years ago; and by encouraging the best-quality people to go into the work that is done at the sharp end. That work, actually, is largely in the solicitors’ profession—I say that as a member of the Bar—because they are the people who do the police station call-outs, the early advice and the first appearances in front of magistrates. That is why Sir Christopher’s report, in that regard, is very important.

[Anne McLaughlin]

You will be pleased to know, Madam Deputy Speaker, that most of the SNP’s objections are around judicial review, so I have only two amendments that I want to speak to and I can do that within a couple of minutes to give other people time to speak.

The online procedure rule committee will potentially cover wide areas of law and will sometimes make rules applicable in completely distinct legal jurisdictions. The SNP is concerned about the lack of representation on the committee from Scotland. Amendments 40 and 41 would therefore ensure that someone with knowledge and experience of the Scottish legal system will be appointed to the committee and that appointment should be made by the Lord President of the Court of Session in Scotland. I cannot see any reason to say no to that. That would address the imbalance in the representation of the Scottish legal system and allow the Government to keep up their pretence about respect for Scotland ahead of an independence referendum.

I say to Labour colleagues—I do so gently because the Labour Members present were on the Committee and we very much enjoyed working collaboratively with them—that I was a little disappointed that, with one notable exception, they abstained on amendments that would in effect have allowed Cart judicial reviews, or Eba judicial reviews as we call them, to remain in Scotland. I ask them to consider voting for this simple little measure so that we would have someone with experience and knowledge of the Scottish legal system to represent our system on the committee.

New clause 7 in my name would ensure the Bill’s compatibility with article 6 of the European convention on human rights: the right to a fair trial. To return to the example I gave earlier about the employment tribunal fees judgment in 2017, if the Bill had been in place when that landmark ruling was handed down, no one would have had fees refunded, everyone would have continued to pay the unlawful fees and, going forward, the Government could have simply changed the unlawful so that it was lawful: in other words, there would be no point whatsoever in taking the Government or other public bodies to court. The chilling effect would be widespread. That is surely a breach of article 6, which gives people the right to a fair trial and an effective judicial remedy. The new clause would allow judges a way to disapply the Bill if they considered there was a breach.

Let me give one more example of a group of people who may be refused their rights to a fair trial if the Bill passes: those who require legal aid. To secure legal aid, applicants must be able to demonstrate a tangible benefit if their case is successful. As I and others have demonstrated, if the Bill is enacted, there will regularly be no tangible benefit. If the Government are trying to keep people on average and low incomes away from being able to bring judicial reviews and access justice, they are doing a very effective job, but they should at least be honest about that. They have said and will keep saying that the Bill is compatible with article 6, but surely that begs the question: why do they continue to resist any amendment to ensure compatibility?

[Andy Carter]

It is a pleasure to speak in the debate in support of the Government’s new clause. The Minister and hon. Members will know that I continue to sit in magistrates courts; I am on the Merseyside bench at courthouses in Sefton in north Liverpool, in Liverpool city centre, in Birkenhead and occasionally in Chester and Crewe. I decided to do so because I felt that, as a Member of Parliament, it would be incredibly helpful and informative to continue to go into courts to understand the issues that magistrates and members of the legal profession face, as well as to hear and see those experiencing the criminal justice system from the other side.

In the last 10 years, I have seen tremendous change in the operation of the courts, which my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) mentioned, all of which has been designed to make the system more efficient. I think it is fair to say that some of the changes—closing court buildings in particular—have been pretty unpopular with members of the judiciary and members of the legal profession. After Dale Street magistrates court in the centre of Liverpool closed—a wonderful old building that had proper courts—and magistrates moved into the Queen Elizabeth II law courts where the Crown court is held, I wondered for a time what that would do to our magistrates courts. On reflection, knowing that four other buildings contained courthouses in Liverpool, I could completely understand why those decisions were taken. The waste that we were seeing within the system was unjustifiable. Our ability to reduce the amount of buildings and focus on developing technology and investing in courthouses to improve the facilities is critical. The ability to invest in the number of professional judges sitting as district judges has enabled a swifter and more effective process in the magistrates courts.

Many members of the magistracy have seen the number of magistrates in the courts continue to fall, which is one of the concerns. and I am pleased that the Government are taking steps to address that. Another area of concern was the centralisation of certain types of cases in certain courthouses. Let me give the House an example. On Merseyside, all motoring offences are now dealt with in Birkenhead, so if a magistrate regularly sits only in Liverpool city centre, they will never come across a motoring case. It can sometimes be a bit of an issue for magistrates to get their head around such issues if they are faced with an appeal, or an issue that has been referred back to their court, and they have not dealt with a motoring offence for some time. I say to the Minister that the ability for all magistrates to deal with all issues is really pertinent in the criminal court.

As the Minister said, magistrates play a fundamental role in our society, covering the overwhelming majority of criminal cases that appear in our courts. I want to join hon. and right hon. Friends in paying tribute to the 13,000 magistrates in courthouses across England and Wales, and to recognise and put on record the sacrifices that they have made throughout the covid pandemic. The overwhelming majority of courthouses stayed open. The magistrates, who were all volunteers, turned up to do their public duty. We should recognise the value that that has given to local society up and down the country. They have ensured that speedy justice has been delivered. I saw magistrates adapting and moving into Nightingale courts in Liverpool, in the historic St George’s Hall, where they continued to provide an outstanding service to the people of Merseyside and Cheshire.

The news this week that the Government are promoting a recruitment drive for 4,000 new magistrates is very welcome. They truly are the unsung heroes in our justice system. We need to ensure that people from every part of our society are represented in their ranks. I urge the Government to look at the recruitment process and the length of time it takes from applying to becoming a magistrate to actually sitting. I know many people who have applied to become a magistrate but who have fallen off during the process because it seems to be endless. The local advisory councils have historically been responsible for selecting magistrates. The Government need to consider that process carefully. The regular meeting of those advisory panels needs to be focused on.

I welcome the news that magistrates’ sentencing powers will be increased from six months to 12 months to help drive down waiting times and bring the criminal justice process to a speedier resolution. As the Minister and the Opposition spokesman mentioned, I have raised this in the House on numerous occasions, and I am delighted to see that it is now moving forward. I thank the Minister for taking this forward and making it happen. Ministry of Justice figures show that victims are waiting more than 600 days for justice after crimes are committed to the Crown court, a rise of more than 50% in the past year. Such delays increase the pressure on defendants, witnesses and victims of crime. The increase in sentencing powers will mean that less serious crimes can be heard much more speedily in magistrates courts, freeing up around 2,000 extra days in Crown courts.

--- Later in debate ---

[Anne McLaughlin]

I reiterate that we vehemently oppose much of the Bill. Nothing that has been said today or during the Bill’s passage has done anything to allay my fears or those of my party.

I thank the people who were involved in the proceedings because a lot of hard work went on. I thank hon. Friends in my party who spoke and my hon. Friend the Member for Lanark and Hamilton East (Angela Crawley) who sat on the Bill Committee with me. Despite my ticking-off earlier, I thoroughly enjoyed working with Labour colleagues on the Committee. The Clerks did a fantastic job. The Clerks in the Public Bill Office could not be more helpful in walking and talking us through each of the different stages. It does not matter how many times we do it—maybe it does matter, but at my stage, it is important that there is someone there to guide us, and I thank the Clerks. I thank my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for all his guidance and advice, the researchers from the SNP team, Aaron Lukas and Matt Hamill, and my own researcher, Michael Bannister, who I relied on heavily to get through much of this. I mean “get through” in terms of what we were talking about, not just getting through mentally, although he helped with that as well.

It is not over. We just need to look back to last week and what happened in the House of Lords. I never thought I would hear myself saying this, but come on the Lords and let us see what they will do with the Bill. [Laughter.] Maybe my friends on the Labour Benches will not be laughing at my next point, but there is another option for Scotland.

Scotland will soon be given the opportunity to take the option of saying, “If you’re going to disrespect the Scottish legal system, the Scottish Government and the people of Scotland, on you go, but we will take our own path and choose independence.” I do not expect many “Hear, hear”s from my Labour friends there, but Scotland has another way and we will choose that path. Of that I have no doubt.

Today I gave the Government the opportunity at least to pretend that they had a bit of respect for Scotland. They did not take it and they have just given us more grist to the mill. That is about the only thing I can thank them for.

Again, I thank everybody for the experience and we will see where the Bill goes from here.

Judicial Review and Courts Bill

Anne McLaughlin Excerpts

Consideration of Lords amendments
Tuesday 26th April 2022 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the SNP spokesperson, Anne McLaughlin.

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

I will speak briefly about the parts that apply to Scotland, which are significant and potentially extremely damaging to people’s rights to access justice. Because Scotland is currently compelled to do as we are told as part of this Union—we do not have the normal powers of a normal independent country—even our own democratically elected Government can do nothing about that damage. If that is not an argument for voting yes in the 2023 independence referendum, I do not know what is.

It is also interesting that, on this Bill, as with the Nationality and Borders Bill and the policing Bill, it has been left to the House of Lords—the unelected House—to represent the views of the people and attempt to get rid of the most egregious parts of each horrible piece of legislation. As a big fan of democracy, that does not make me any more inclined to support an unelected Chamber, but I want to pay tribute to those Members who have worked so hard, often into the early hours of the morning, on all of the amendments to try to make an awful Bill a tiny bit more palatable.

Lords amendment 1 removes the power to include provision and quashing orders, removing or limiting their retrospective effect. Those on the Opposition Benches, and in particular those of us who were on the Bill Committee, tried hard to get the Government to understand that if quashing orders are not to be applied retrospectively, there will be a very chilling effect. Many of us talked about the landmark case of Employment Tribunal fees that Unison brought to the Supreme Court in 2017, where the Court found that Parliament was wrong to limit people’s access to justice by charging them to use the Employment Tribunal. It found in favour of the claimants, and the quashing order had immediate effect, so the fees were abolished immediately and the Government were required to refund anyone who had paid them in the past. Given that people were being charged up to £1,200, that was a great outcome that will have made a big difference to many.

However, if the Government get their way and Lords amendment 1 is not agreed to, should something similar happen in the future, anyone who had paid such fees would be unable to claim their money back. Who would put themselves through all that for no tangible outcome? There will be zero incentive to challenge the Government or other public bodies, so those public bodies and the Government will be able to proceed safe in the knowledge that they can do whatever they like. The Scottish National party therefore absolutely supports the very sensible Lords amendments 1, 2 and 3.

At last, the Government have seen sense and agreed to Lords amendment 4. There was something sinister about the Minister wanting the power to tell the judiciary how to do their jobs. Judges have a suite of remedies at their disposal, and they should decide which are the most appropriate, so I am relieved that they finally agreed to that amendment.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

I wonder whether the hon. Lady is making an argument that contradicts her previous one. On the one hand, she said that she does not want retrospective quashing orders to be available to a judge to make a decision on, and the other hand, she argued that judges should be trusted to make their own decisions. Surely judges can be trusted to make decisions on whether a retrospective quashing order is or is not appropriate in an individual case.

[Anne McLaughlin]

We have had this discussion so many times before. The hon. Member needs to go and look up the meaning of the word “presumption”.

Lords amendment 5 is about Cart judicial review—in Scotland, it is Eba judicial review. The amendment would insert a new clause to enable appeals of an upper tribunal decision to refuse an appeal to the High Court and then to the Supreme Court if considering a point of law or if it is in the public interest. It is a compromise, and surely the Government can accept one further minuscule compromise. After all, as we have pointed out to Government Members on numerous occasions, the Government claim that their measures were motivated by a high number of attempts versus the low rate of success, but the evidence to support their position was so flawed that the Office for Statistics Regulation decided to launch an investigation, which found that the real success rate was at least 15 times higher than the Government were telling us. I do not think that we have had an apology for that obfuscation yet, but these days Government apologies tend to have something of a hollow ring to them. Therefore, instead of apologising, why do they not just accept that their stats were flawed and accept the compromise amendment?

Worse: the Government insist on thinking that a Cart judicial review is successful only if the appellant actually wins. The truth is that a successful Cart judicial review is one where the flawed decision of the upper tribunal is appealed and reversed. That has nothing to do with the final outcome of the case. If we base the figures on that, the stats show just how vital a safeguard Cart judicial reviews are. Using accurate figures, the Public Law Project calculated that 40 people every year would be otherwise incorrectly denied their right to appeal in cases where, as we heard from the shadow Minister, the hon. Member for Hammersmith (Andy Slaughter), the stakes can be incredibly high. We are talking not about trivial cases, but sometimes life-and-death cases. The tribunal system considers access to vital benefits, and removing that layer risks leaving people with disabilities and those facing destitution and homelessness without a last line of defence.

The tribunal system also considers immigration cases, as we heard. If it is so flawless, how am I able to tell the story again of the Venezuelan man who fled to the UK after witnessing the violent murder of his friend by state actors who would most certainly have come after him, had he remained in Venezuela? The first-tier tribunal and the upper tribunal surmised that he had nothing to fear. Thankfully, he had that last line of defence, which the Government are trying to take away and the Lords are trying to save, and he was able to judicially review the decision. The upshot was that the man was allowed to appeal. He won and was saved from deportation and almost certain persecution and death.

Retaining the restricted supervisory jurisdiction, as proposed in Lords amendment 5, would help to avoid injustice. However, voting against the Lords amendment would be a clear demonstration that people such as the man I mentioned, people who are dependent on disability benefits, and people facing homelessness are irrelevant to the Government and to Conservative Members.

Lords amendment 7 is on the online procedure rule committee. We were disappointed that neither House accepted our very reasonable request to include just one representative on the committee with knowledge and experience of the Scottish legal system. When we proposed such amendments during previous stages, I said that accepting them would

“allow the Government to keep up their pretence about respect for Scotland”.—[Official Report, 25 January 2022; Vol. 707, c. 939.]

They have declined to do even that, as has the House of Lords. It is extremely disrespectful to Scotland and our distinct legal system.

The Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of their citizens and, in particular, some of their most vulnerable people. The Bill needs to be seen as part of a whole alongside the independent Human Rights Act review, which is under way, a review of the Constitutional Reform Act 2005, which is on its way, and a succession of relevant pieces of legislation that are currently before Parliament—very currently, in fact; some are being considered this week and even today—such as the Elections Bill, the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill.

Those proposals all have something else in common: they are decisions that should be taken by the countries affected. We should not have one country deciding for other, smaller nations. Why do the people of Scotland have to put up with what Liberty called

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

when they have consistently voted for parties opposed to those things? I will tell hon. Members why: because a slim majority of people were frightened into voting against independence in 2014.

The people of Scotland will be far more afraid of all this legislation being imposed on us than any daft scare stories that the coalition of Unionist parties can come up with next time around. We will always show solidarity to people in the rest of the UK who are fighting these terrible wrongs, but next time, in 2023, I am confident that the people of Scotland will vote yes to independence and yes to making far better decisions for ourselves.

[Sir Robert Buckland (South Swindon) (Con)]

I rise to speak chiefly to part 1 of the Bill. It is always a pleasure to follow the hon. Member for Glasgow North East (Anne McLaughlin), and I listened with great care to her speech. She and her colleagues often accuse the Prime Minister of wanting to have his cake and eat it. I gently but firmly suggest that she is doing the same on this occasion by relying on the unelected House, which she does not believe should exist because she is a unicameralist. That would mean that her argument about relying on the second Chamber when it is convenient is a somewhat unattractive one.

[Anne McLaughlin]

Does the right hon. and learned Member not understand that Members who support the system of an unelected Chamber and put people into it—the Scottish National party does not—are the ones who are being hypocritical when they then criticise it? I operate within the existing system, but I am trying to change it. However, Government Members support the system and then get angry when it fails to do what they want it to.

[Sir Robert Buckland]

I am grateful to the hon. Lady; her comments show the value of interventions, because we can have a genuine debate about a very important issue that goes to the heart of Lords amendments. My concern about the Lords amendments to clauses 1 and 2 is that their effect would be to go further—I am sure that it was not intentional—than their lordships’ usual role of providing close scrutiny and careful amendment, where the principle of the Bill is maintained but some of the details are altered. We have seen an example of that on presumption, on which the Government have rightly conceded.