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.