Judicial Review and Courts Bill

Caroline Johnson Excerpts

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.

--- Later in debate ---

[Wera Hobhouse (Bath) (LD)]

I rise to speak to Lords amendments 1, 2 and 3, all tabled by Lord Marks in the other place. I appreciate that the Government have made some concessions and I thank the Minister for his meeting with me.

Amendments 1, 2 and 3 would remove from the Bill the power to make prospective-only quashing orders. They are backed by the Law Society and Justice, and I urge Members across the House to back them too. Judicial review is one of the most powerful tools that an individual has to enforce their rights. Challenging the Government through the courts when they get things wrong is one of the core principles of our parliamentary democracy.

[Dr Caroline Johnson]

Will the hon. Lady give way?

[Wera Hobhouse]

No; I am conscious of time and Madam Deputy Speaker is anxious that we proceed.

The principle should not be party political but one shared across the House. It is disappointing to see the Government pushing ahead with plans to restrict judicial review by opposing the amendments. Unamended, the Bill is described by the Law Society as “chilling”; clauses 1 and 2 undermine judicial review. Prospective-only quashing orders could be hugely harmful to those seeking justice: they would not only deny redress to someone who had been harmed by a public body’s unlawful action, but actively serve as a disincentive to those seeking justice through judicial review.

Let us imagine a person who had incorrectly been deemed ineligible for carer’s allowance by the Department for Work and Pensions. That person successfully challenges the decision through judicial review. Prospective-only quashing orders would mean that the person did not receive the back payments unlawfully denied to them. Those payments could mean the difference between a person heating their house or going cold, or between eating or going hungry.

To make matters worse, extensive delays in courts mean that decisions could be put off for even longer. Prospective-only quashing orders arbitrarily discriminate between those affected by an unlawful measure before a court judgment and those affected after one. There are numerous examples. In 2017, the High Court ruled that a Home Office policy to deport EU rough sleepers was unlawful and discriminatory. The policy was scrapped. If a prospective-only quashing order had applied, then potentially only those receiving a removal notice would be protected; all those who had already faced removal or had had a removal notice issued against them would still have faced deportation. That would not have been justice.

Important as they are, the damaging effects of prospective-only quashing orders go far beyond individual cases. They damage the basic principle that underpins our democracy: that individuals must have the power to challenge the powerful when the powerful get things wrong. If the Government or public bodies are spared the risk of retrospective legal consequences, the motivation for good decision making is lower. Public bodies will take their chances, particularly in issuing welfare benefits, because the cost of getting things wrong would still be lower than getting them right in the first place. That is bad not only for those seeking redress from the courts but for all of us. It should ring alarm bells for all of us.

The Bill is just another Government programme of constitutional reform that weakens the institutions and rights that hold them to account. We saw that in the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Government’s voter ID proposals. We Liberal Democrats will continue to stand against any attempts to weaken the institutions and rights that hold the Government and the powerful to account. I urge Members across the House to do the same and vote in favour of Lords amendments 1, 2 and 3.