Judicial Review and Courts Bill

Debate between Anne McLaughlin and Caroline Johnson

Consideration of Lords amendments
Tuesday 26th April 2022 Commons Chamber

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

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

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

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

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

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

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

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

[Anne McLaughlin]

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

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

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

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

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

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

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

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

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

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

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

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

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

Judicial Review and Courts Bill (Fifth sitting)

Debate between Anne McLaughlin and Caroline Johnson

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

Judicial Review and Courts Bill (Third sitting)

Debate between Anne McLaughlin and Caroline Johnson

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Marco Longhi]

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

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

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

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

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

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

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

[Anne McLaughlin]

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

[Dr Johnson]

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

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