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.