Judicial Review and Courts Bill (Fourth sitting)

Antony Higginbotham Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter]

I thank the hon. Gentleman for his point. We did hear a number of different figures. I am now stretching my memory to recall exactly who said what. Was it Professor Feldman who said 30% to 50%, and Dr Morgan who posited 5%? I cannot quite remember. However, yes, there are different success rates for different types of judicial review. The point is that, even if the figure is small, Cart judicial reviews are important—I will come on to that more fully. However, if it is 5%, that is not a negligible figure. One in 20 is still a lot of cases. I am going to give some case examples to show the type of case that we are dealing with here. Perhaps the hon. Gentleman will be persuaded that there are sufficient by way of number and variety or that the compelling facts of the cases are such that he would want to retain Cart reviews. We will see.

The Government said they would introduce legislation to reverse the law on Cart judicial reviews. They said that they would seek to widen ouster clauses to other areas, although accepting that they would be rare. They also said they would legislate for modifying quashing orders so that they could be suspended or have limited effect. The proposals announced by the Government appear to be more radical than those envisaged by the independent panel—I think that is true.

The Lord Chancellor recently suggested that there may be more reforms to come on judicial review. His view was that judicial review meant that public money was being squandered, as courts are overturning Government decisions. However, as the commentator Joshua Rozenberg recently put it, commenting on a decision of the Transport Secretary on the Stonehenge case, which I have already referred to today, if the Transport Secretary

“had got it right the first time, taxpayers’ money would not have been squandered.”

Rather than a Minister complaining about a court rectifying unlawful decisions, it would be better to make lawful decisions in the first place.

The clause would take away proper, full judicial oversight in a specific area of public decision making, leaving vulnerable individuals affected by decisions more at risk of injustice. It does so in a way that the Government explicitly state is a test run for other ouster clauses—trying to get rid of judicial oversight in other policy areas. We have been left with a Bill that is bad for claimants bringing cases, disincentivises others who have been wronged bringing their own, fetters discretion while dragging courts into matters of policy, and jettisons a vital safeguard for very little gain. There is nothing in this part of the Bill to help improve the quality of decision making. It simply risks making it worse. The judicial review aspects make up only a small amount of the Bill, but there is very little that we think can be salvaged.

Clause 2 introduces the ouster in respect of decisions of the upper tribunal. That means that some decisions will now be final and cannot be appealed to another court, because the clause would abolish the Cart judicial review. The upper tribunal deals with a host of appeals from various tribunals. The context is the importance of scrutiny and accountability mechanisms to hold public authorities to account.

Cart judicial review is used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights.

[Antony Higginbotham (Burnley) (Con)]

The hon. Member is making some interesting points about why we need to keep the system as it is, which allows for three bites of the cherry. Will he set out whether he thinks that process should extend to lots of other areas, and has he considered how much that would cost and how much judicial time would be taken up?

[Andy Slaughter]

I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.

[Andy Slaughter]

Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.

[Antony Higginbotham]

I do not think anyone is saying that it does not work. What we are saying is that it is a different process, and we are talking about whether it is efficient and fair for this one cohort of cases to be treated in a very different way. It is not about whether it works or does not work; it is about whether it is the right process and whether we should operate on a consistent basis.

[Andy Slaughter]

I have said, and I am coming back to the issue, that it is right and just to maintain Cart judicial reviews, but I will come on to the issue of cost shortly and whether that is appropriate. I hope that will answer the hon. Gentleman’s question.