Judicial Review and Courts Bill

Apsana Begum Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

This is just another Bill in the Government’s programme of constitutional reform that weakens the institutions and rights that hold the powerful to account. The Police, Crime, Sentencing and Courts Bill attempts to restrict the right to peaceful protest and the Elections Bill disenfranchises thousands of people from marginalised backgrounds in the name of preventing voter fraud, when there is no evidence of that happening on a large scale. That is not to mention the Government’s contempt for the Human Rights Act. Nobody, not even Governments, is above the law. The Liberal Democrats will continue to stand against any attempt to weaken the institutions and rights that hold the powerful to account.

[Apsana Begum (Poplar and Limehouse) (Lab)]

I rise to speak to a number of amendments and new clauses, in particular new clause 4, which corresponds with the commitment in the 2019 Labour manifesto to ensure legal aid for inquests into deaths in state custody—a commitment first announced in February 2019 by my hon. Friend the Member for Leeds East (Richard Burgon) in his former role. Closely linked are new clauses 5 and 6, which I also want to mention. The justice charity Inquest has been campaigning for decades for bereaved families to be granted automatic non-means-tested funding for legal representation following state-related deaths.

I support amendments 1, 2, 3 and 23, which are about removing the provision to make quashing orders suspended and prospective only. I place on the record my strong opposition to the removal of Cart judicial review and, as such, I support amendment 5 to delete clause 2 entirely. Amendment 25 speaks to the problem that campaigners have with the prospective-only remedies that the Government are proposing, in that they leave many successful claimants with no effective remedy. On amendments 27 to 30, I agree with Liberty, who argue that, although it supports the amendments, the very fact that so many changes are required to mitigate the harm of the provisions, alongside the lack of any need for their introduction, shows they would be better off discarded altogether.

That brings me to the thread that runs through the amendments, and the crux of the dangers of the Bill as a whole. The legislation before the House today removes vital safeguards that protect often marginalised people, especially migrants, from mistakes being made by public bodies—mistakes that could have a catastrophic impact on their lives. I want to highlight an example of what I understand that to mean and to flesh out one of the many human consequences at stake by talking about disability benefits.

Around four out of five cases where a claimant has been denied disability benefits are overturned on appeal. Why? As we know, serious concerns have been raised about the key measures introduced in the Welfare Reform Act 2012—the replacement of the disability living allowance with the personal independence payment, a new sanctions regime and new assessment processes for employment and support allowance. Even a United Nations inquiry said there were “grave or systemic violations” of the rights of disabled people, in reports to the Information Commissioner concerning the deaths of claimants following their work capability assessment finding them fit for work.

It has been clear for many years that the assessments in particular are not fit for purpose and in many cases are actively harmful to the people who are subjected to them. In some cases, a decision not to award a PIP has been overturned by a tribunal after it had taken account of medical evidence from doctors about the claimant’s condition that had been ignored by officials during the initial assessment.

I am conscious that each of the many thousands of incorrect decisions about what support a disabled person should be getting causes real suffering to that person and to their family and friends. I support the growing calls for an independent inquiry to investigate why claimant deaths are happening, and for the scale of such deaths to be properly understood. The Conservative austerity program of cutting costs through so-called welfare reform has been brutal. We need to scrap the dehumanising work capability and PIP assessments and pursue the social model of disability, removing the barriers constructed by society and ensuring that disabled people can participate fully and equally in our society.

During the covid-19 pandemic we have seen further failures in providing proper financial and practical support to disabled people and their families, which have led to many being denied the support needed. The Government’s strategy in responding to the pandemic has led to many thousands of avoidable deaths, and it is important to recognise that disabled people form a large proportion of those deaths. Yet, perversely, and with a heartless callousness that is breath-taking, the Government’s answer is not to address the widely recognised abomination that is their treatment of people with disabilities, but to seek to further attack their rights—to obscure scrutiny, truth, and justice.

It is no coincidence that as the Government look to water down people’s power to challenge the state, a number of groups are using that power to hold them accountable. Indeed, a host of high-profile court cases, on disability rights, as I have addressed in my comments today, to police violence and climate change, are seeking to challenge the Government’s decisions. I wonder whose side history will come down on in the end—those who challenge injustice and power, or the perpetrators of injustice and power seeking to avoid accountability? We will resist this Government’s attacks on our communities and our rights, and we will overcome.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

May I start by picking up a point that the hon. Member for North Shropshire (Helen Morgan) made in her excellent maiden speech, on which I congratulate her? If nothing else, recent events reassure us that our constituents quite rightly do not like the Prime Minister, the Government or any public authority operating as if they were above the law or as if the rules that we all have to follow do not apply to them.

Although the Bill may not attract as many headlines as the various partygate stories, it raises the same issues, but in a much broader and more profound way. The Conservative Government are once again trying to put themselves above the law and make sure that basic principles of administrative law and rules passed by this Parliament do not constrain them. That will be the impact of the first two clauses, so I fully support all the amendments that seek to leave out or ameliorate them. I adopt all the arguments that my hon. Friend the Member for Glasgow North East (Anne McLaughlin) and all Opposition MPs have put forward today.

I would like to take on the argument made by the Attorney General and others that the Bill is about parliamentary sovereignty, as troubling and overrated a concept as that is. The Bill does not assert the sovereignty of Parliament; it promotes untrammelled Executive authority. It is not about ensuring that Parliament’s will is respected, but about Government and public authorities being able to exceed or ignore the rules and restrictions that Parliament has placed on them. For us to vote for the Bill would be not so much an exercise of parliamentary sovereignty as an exercise in parliamentary stupidity, inviting the Government to ignore the limits we place on them and helping to exacerbate what Lord Hailsham called elective dictatorship.

My main point relates to Scotland and to amendments 42 and 43, which I support. To build on points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), it is absolutely not for this Parliament to impose clause 2 and changes to Cart and Eba judicial reviews on Scotland’s legal system. As the independent review of administrative law made clear, judicial review is a devolved matter. The review’s report was absolutely clear that it would be for the institutions of devolved government to decide whether to follow its recommendations. Without exception, every single submission from a devolved jurisdiction was opposed to, or at least not persuaded of, the need for reform.

Scotland has undertaken its own reform of judicial review in recent years. For this Parliament to interfere with it risks setting up two parallel systems of review in our jurisdiction, whereby someone challenging a devolved social security decision might face totally different obstacles from someone challenging a reserved social security decision. Again, the independent review was clear, describing such a two-tier system as “highly undesirable”. As my hon. and learned Friend alluded to, the analysis of judicial review in Scotland in the review is limited, as its authors acknowledge, but none of the overall judicial review figures cited—less than 400 cases commenced each year, of which less than 50 make it to a hearing, with 30% successful—justifies these rather obnoxious proposals.

The Joint Committee on Human Rights and the Law Society of Scotland have both concluded that there is “no evidence” of any problem in Scotland that needs this Government to interfere. They, too, confirm that this is a devolved issue. In its briefing on the Bill as long ago as Second Reading, the Law Society of Scotland set out that, unusually, there are two grounds for arguing that the Government should not bulldoze these provisions through: not only are they legislating on a devolved matter, Scots private law, but they are narrowing the competence of the Scottish Parliament because clause 2 creates a rule special to a reserved matter and the Scottish Parliament does not have the competence to abolish or modify such a rule. It is a double whammy.

Indeed, for reasons that my hon. and learned Friend set out, it is a triple whammy. As was pointed out to the Government review panel, the Scottish competence of judicial review derives from article XIX of the Acts of Union of 1706 and 1707. The Law Society of Scotland warned the panel that

“care always has to be taken so as not to render the Court’s”—

the Court of Session’s—

“jurisdiction in judicial review ineffective”,

and that if reforms in the area go too far, they may

“be in breach of the Acts of Union”.

I object to the whole purpose of part 1 of the Bill, but even if the Government insist on pressing ahead, the overwhelming view from Scotland is “Get your hands off our judicial review laws.” That is why everybody in this House should support amendments 42 and 43.