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.

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[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.

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[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.

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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.

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[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.