Judicial Review and Courts Bill

Debate between Anne McLaughlin and Laura Farris

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Anne McLaughlin]

I am a bit confused. The hon. Lady said that taking away Cart judicial reviews would not stop somebody going to the Court of Appeal from the tribunal system, so I just wonder what the route is. Perhaps I have misunderstood.

[Laura Farris]

For an applicant to end up in the Court of Appeal, they would win or lose at first instance and either appeal or be appealed by the Home Office, the upper-tier tribunal would give permission for that appeal, and it would be heard in the upper-tier tribunal. The applicant would either win or lose again, and then they would find themselves appealed to the Court of Appeal. That will not change where difficult areas of human rights law are engaged.

The issue here is where the upper-tier tribunal says, “No, we won’t give permission to hear your appeal,” and then the applicant goes to the High Court and seeks a judicial review application. It is that narrow aspect that is excluded by the Bill. It is important to clarify that, because I think there is some uncertainty about whether human rights are being excluded, and I am glad that the hon. Lady asked me.

[Anne McLaughlin]

rose—

[Laura Farris]

I will make a little progress, because I know that time is limited.

The Opposition frequently push Government Members on the issue of backlog and delay. In the early days of the pandemic, they were right to do so, but I do not think that they can sustain an argument where they simultaneously criticise delays that have arisen because of the pandemic and advocate a disproportionality in an area of litigation where over 95% of claims are unsuccessful, clearly clogging up court time.

The second issue that I would like to address is the new flexibility in quashing orders, and particularly the issue of suspended quashing orders. I read the IRAL report very carefully. It reached its conclusion by reviewing the Court of Appeal’s decision in the case of Hurley and Moore. When it found that there had been a breach of the public sector equality duty, the Court made a declaration of illegality rather than a quashing order because it wanted to give the Secretary of State room to comply. As I see it, clause 1 is in keeping with that.

A number of organisations have written to me to say that, while they perhaps understand the basis of the decision, they are generally opposed to suspended quashing orders where the provisions of a clause will be void. Respectfully, I think that fails to properly engage with what is at stake. The public sector equality duty is a really helpful starting point here. Let us look at the way those cases were litigated through the appeal courts in the early days. We had the library closure cases, with Somerset County Council, Gloucestershire County Council and Surrey County Council all losing public sector equality duty cases. We then had the care home cases, such as South West Care Homes v. Devon County Council, and the mental health cases. All of them were in 2011, 2012 or 2013.

What is most striking about public sector equality duty cases now is that they almost never succeed; actually, I could not find an example of one that had succeeded since 2015. It occurred to me that it is at least possible that the reason the courts will not engage with those cases is that they think it is too onerous to quash. I think that the Bill provides more scope, not less, for some of the progressive principles that can be advanced for a judicial review to succeed if it is not immediately the subject of a quashing order.

I also listened to observations made on the Opposition Benches about retrospective decisions and retrospective effect; what that would have meant in the Unison case and whether the Supreme Court would or would not have ordered the Ministry of Justice to repay the fees paid by litigants who were bringing claims during that period. I just do not think it is possible to read Lord Reed’s comments in that judgment and not find it was absolutely guaranteed that the Supreme Court would order the fees to be repaid. Let us look at clause 1(8) and (9), which set the criteria. The Supreme Court effectively applied them all and found that the repayment of fees was necessary, so I do not think it is a good example.

It is, however, worth recalling the case of HM Treasury v. Ahmed, which the Secretary of State mentioned in his opening remarks. That was a critical case, one of the first cases the Supreme Court heard, because it dealt with important issues of constitutional consequence and public interest. The Labour Government had done what any right-minded member of the public would think was sensible. They found three people who they suspected, but were not convicted, of terrorism offences. As a precautionary measure, they froze their assets. They believed they were entitled to do so under the United Nations Act 1946. They were, in fact, not entitled to do so and the Supreme Court found them to have acted ultra vires and quashed. We know that at least one Supreme Court Justice was nervous about that. Lord Hope said:

“I would however suspend the operation of the orders that I would make for a period of one month from the date of the judgment to give the Treasury time to consider what steps, if any, they should now take.”

What if they had had the power to suspend the order? We know the judgment was handed down on 27 January 2010. By 5 February, Alistair Darling had introduced the Terrorist Asset-Freezing (Temporary Provisions) Act 2010. By 10 February, two weeks later, that had received Royal Assent. It was manifestly in the public interest for Parliament to have the opportunity to legislate on that. How much better if the Court had had the opportunity not to make a quashing order, but to suspend.

That brings me to my final point, which is something I do not think anyone on the Opposition Benches has engaged with at all: what the doctrine of nullity is really about. In private law, the Court has the opportunity to consider and to decide that something is unlawful, but in public law it does not just decide that; it quashes altogether. I am of the view that allowing some discretion, where the effect of a quashing order would potentially run contrary to the public interest or conflict with what might be the will of Parliament, offers a more constructive opportunity to resolve public law problems.

[Anne McLaughlin]

I thank the hon. Lady for again letting me in. Surely this is ordering judges to have a presumption in favour of prospective, rather than retrospective, quashing orders? We are not giving them the opportunity to use it—we are saying, “You will use it as a default position.” That is the problem.