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.