Judicial Review and Courts Bill (Second sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Alex Cunningham]

That is very helpful, thank you.

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

Q I wanted to ask a question about online procedures, particularly the coronial inquest where you have said that 95% are carried out by a coroner sitting alone. For the 5% that require witnesses, how does being able to hold inquests online make the system more efficient?

André Rebello: Perhaps I misspoke. When a coroner sits alone, the coroner still hears evidence, and witnesses still come to court. It is just that there is no representation for any of the interested persons; the coroner hears evidence and makes finding and determinations. There is a real issue, though, with remote hearings in that, although many people have found advantages with them, the coronavirus easements did not apply to coroners’ courts. Coroners’ courts have only been able to work through remote hearings by using rule 17 to receive video evidence.

The provisions in this Bill are to bring coroners’ courts in line with other courts. However, there is a real issue in regard to the Equality Act 2010; not everyone can participate in the rule of law and in open justice through remote hearings. Any judge presiding has to be very careful to make sure that everyone can participate. I suspect there are more disadvantages in remote hearings than in having everyone in court, where you can fully appreciate how people are following the proceedings. In the 95% of cases where there is no representation, the coroner still hears evidence. It is not as if the coroner is just reading statements; evidence is still heard.

[Dr Johnson]

Q Do you think there are enough safeguards to be sure that people are able to participate, and alternatives if they are not?

André Rebello: With regard to remote hearings or with regard to—

[Dr Johnson]

Q You said that some people cannot participate in remote hearings.

André Rebello: No. Basically, with remote hearings, there are all kinds of AV infrastructure challenges with regard to recording what has been said, and people with hearing difficulties being able to follow Zoom or Microsoft Teams. Technically it is quite difficult. It is also difficult for a coroner to evaluate evidence, because they do not have the people in front of them to judge.

Further, there is a danger with remote hearings that we will lose courts. If people can have all hearings remotely, there is a danger that we may not have a court infrastructure in future, for when justice needs to be seen to be done. The correct procedure in my view is that most things should be dealt with in court, and remote hearings should be used where necessary, but that should not become the norm.

[Dr Johnson]

Q Can you give an example of where it might have been necessary? I have given evidence to coroners’ courts, in my capacity as a doctor. I remember one specific case where the doctor who had been involved with the child at the time of death was overseas and refused to return for the court. As someone cannot be extradited for the purpose of a coroner’s court, their evidence was not heard. Would allowing online processes enable that individual’s evidence to be heard? Does it apply to evidence being given virtually from overseas?

André Rebello: Under the Coroners and Justice Act 2009, the coroner can receive evidence by video, under rule 17 of the inquest rules. I have certainly received evidence from Australia and, I think, South Africa, with doctor witnesses who had moved overseas and then given evidence. I see no reason why coroners should not receive evidence from overseas. However, if people can attend, it is important, because it is a lot easier to give an explanation about the means someone comes by the cause of death, if everyone is in the courtroom, and everyone can follow the proceedings.

If Parliament brings in remote hearings for coroners and brings them in line with the Courts and Tribunals Service courts, the Chief Coroner will have to issue some very firm guidance on how and when it is used, because I do not believe it should become the norm.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Q Much has been said about the importance of having people present when looking into such an important matter, which I understand, but there is an accessibility issue. One thing we have learned throughout the pandemic is that many people have had the advantage of accessibility and the ability to attend. Would it not be a real advantage, in some instances, to have a hybrid performance, so you could retain the formal court setting, with people both present and remote, if required?

André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.

--- Later in debate ---

[Alex Cunningham]

Okay.

[Dr Johnson]

Q On death certificates, you spoke about treating the last illness or seeing a patient in the last 14 days or after death. I appreciate that at the moment you can see them in the last 28 days or after death, and you seem to be implying that makes a large difference. With increasing face-to-face appointments and the opportunity to see the person after death, why do you believe the change will make a material difference to the number of cases referred to the coroner? I appreciate that the coroner gets involved if you cannot issue a death certificate, but how many cases are there in which the doctor is unable to see the patient after death or in which the 14-day window—between 14 and 28 days before death—is crucial? It seems to me that there would not be many such cases.

André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.

I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.

[Andy Slaughter]

Mr Leiper, am I okay to ask you about employment tribunals?

Richard Leiper: You can.

--- Later in debate ---

[Liz Twist]

Q Talking of local stakeholders, do you think that the proposals might have an adverse impact on the independence of the magistracy?

Ellie Cumbo: I do not think we have considered that question in detail. Possibly the Magistrates Association would be best placed to comment, and we would usually defer to them. If you would like us to provide an answer at a later date, I am very happy to do that.

[Dr Johnson]

Q I want to clarify with Sara; you have talked about the importance of Government accountability, and the importance of judicial review to children with special educational needs and people who may be discriminated against because of a disability. I do not think there is anyone in the Committee who would disagree with you on the importance of those things. However, in practice, the decisions that are governed by the Cart reviews are not decisions of Government; they are decisions of an upper-tribunal court.

Sara Lomri: Absolutely. When I was talking about—

[Dr Johnson]

The legislation that I am talking about would not actually affect whether or not a child with special educational needs, or a disabled person, was able to bring a judicial review of the Government’s decisions on their behalf. It does not really apply to this Bill—or have I misunderstood?

Sara Lomri: I think you have. I was painting a picture of the kinds of clients that I represent when using judicial review. Clause 1—

[Dr Johnson]

But does it affect the abolition of the Cart reviews?

Sara Lomri: Clause 1 is about the presumption of prospective-only orders, which absolutely would impact on that client group.

[The Chair]

Order. I am afraid that we have come to the end of the time allotted for this panel. I thank the three witnesses for their evidence.

Examination of Witnesses

Louise Finer, Stephanie Needleman and Steve Valdez-Symonds gave evidence.

--- Later in debate ---

[The Chair]

Thanks very much for attending today’s meeting. I will start with Dr Caroline Johnson.

[Dr Johnson]

Q I want to ask a question about judicial reviews, and in particular the numbers of cases. In earlier evidence, we were told that there were a 1,000 cases of judicial reviews per year. I wonder how many of those would be the Cart review that we are talking about in relation to the Bill. Do you have any figures on that?

Dr Tomlinson: I do not have the exact full set of statistics to hand, but I would happily supply those to the Committee. The general picture of judicial review is that ordinary judicial review, by which I mean non-immigration cases, is around a few thousand cases issued every year. Numbers have been declining in recent years. On the immigration side, for a good period of time—a couple of decades—there have been more immigration judicial review cases. They are obviously mostly heard in the upper tribunal now. The numbers fluctuate for a variety of complicated reasons, but my understanding is that they have been coming down in recent years. Cart is a small subset of judicial reviews. I can provide the full statistics to the Committee, but that is the overall picture.

[Dr Johnson]

Q The other thing that we have been advised on is the success rate of the Cart review in immigration cases. We have been given figures of between 0.22% and 5.7%. Regardless of where in that range you feel that the real figure lies, it is substantially lower than the figure for a standard judicial review. What is the discrepancy, and why do you think it is present?

Dr Tomlinson: If you do not mind, I would like to comment on the figure, which is an important starting point. The original figure provided by the independent review of administrative law was 0.22%, which is an incredibly low success rate, but that figure was arrived at through the IRAL’s expert panel simply looking at published judgments. The Cart procedure is such that it is very unlikely to produce public judgments, so the panel looked only at a very narrow sample of the overall case load. The 0.22% figure is basically flawed. It is not correct, and the Ministry of Justice has since accepted that and provided a new figure of 3.4%, as I understand it. In various ways, I think that is also a deflated figure. Importantly, success is measured in the narrowest way possible. With a wider definition of success, you can get to a higher success figure.

It is difficult to say with any precision what the figure is, but I can say it is certainly not 0.22%. It is 3.4% with a very narrow definition of success, and it is higher than that if you have a different definition of success. The best figure, although it is not a precise figure, is that about one in 20 cases are successful. Of course, one in 20 is a relatively high success rate. You are challenging judicial decisions, so you would hopefully expect them to be of better quality, and so on. In my view, the success rate is not as low as the initial figure that was put out suggests.

[Dr Johnson]

Q Sorry, but the question was: what is the figure for a standard non-immigration-related judicial review, and where do you think the disparity comes from, if there is one?

Dr Tomlinson: Again, I am not trying to dodge the question. It is very difficult to define in a precise way what success in a judicial review looks like. To take one example, most strong cases settle relatively early in the procedure. Settlement is a really important part of the judicial review system, but the way they show up in the statistics is that they look like withdrawn cases. The various statistics that we have vary, but I think we can accurately say that the Cart success figures are lower than the average judicial review success figures. By how much would be very difficult to say precisely, but one in 20 is still a reasonable success rate.

[Dr Johnson]

Q Professor Feldman, who is professor of English law at the University of Cambridge, gave evidence earlier in which he said the success rate for a non-immigration-related judicial review was over 50%. Why do you think that they are 10 times more likely than immigration-related judicial reviews to be successful?

Dr Tomlinson: I think the figure that Professor Feldman is relying on in making that claim is the success rate after a hearing. As I have just explained, many judicial reviews—the majority of them—do not reach a full hearing. When you get to that point, the success and failure rate is roughly 50:50. It obviously goes up and down in various directions ever year, but it is roughly 50:50. Overall, the success rate is potentially a bit lower, depending on how you define success. Again, I would say that potentially the best explanation for why success rates are lower in Cart judicial reviews is that you are talking about judicial decisions, rather than administrative decisions, being challenged by judicial review, so you can potentially expect a better quality of decision that is likely to withstand judicial review a little more robustly.

[Dr Johnson]

Q Just to be clear, what you are saying is that in a standard non-immigration judicial review a good case is more likely to settle before court. Although 50% are successful in court, the likelihood is that even more cases taken forward will be successful, because the better cases will have been filleted out beforehand.

Dr Tomlinson: Would you remind repeating that point? My connection dipped for a moment.

[Dr Johnson]

Q What you are saying is that 50% of the cases that ultimately reach court for a non-immigration judicial review are successful, but the likelihood of cases being successful is probably higher than that because the better cases will have been settled out of court. You also made the point that the Cart judicial review is the review of a judge’s decision, and not a review of the Government’s decision. In effect, it is not the same as other judicial reviews, because it is the court asking the High Court to judge the opinion of a court of the same level, rather than a judicial review, whose purpose is to hold Government and Government decisions to account. Is that correct?

[The Chair]

Sorry, there were two questions there. Before the witness had the chance to answer the one about the percentage of cases, you came up with another one. Were you clear on the first question, Joe?

Dr Tomlinson: I think so, yes. The headline point is that the statistics we have on judicial review—as a wider point, what the Government collect on judicial review could be much better—only give you a limited insight on success rates overall at different stages.

On the second question, if I have understood correctly, yes, obviously, Cart judicial reviews are of a slightly different nature, in that they challenge decisions of the tribunal. However, there are good reasons potentially, still, to provide judicial review of those decisions. Ultimately, what is at the base of those cases are the rights of individuals. While I can see there is a distinction to be drawn there, which was extensively dealt with in the initial Cart decision by the Supreme Court, the distinction in some ways is immaterial to the rights of the people who bring these cases.

[Dr Johnson]

Q That being the case, if you are in support of maintaining the Cart review of judicial decisions in the upper tribunal, do you therefore believe that a review of all decisions at courts at that level should be available by judicial review? Do you think everyone should get the third chance? Would anyone else on the panel like to comment on that?

Aidan O'Neill: The first issue, of course, if one takes the 5% figure by way of success—I agree with Joe Tomlinson that it is a high figure—is that one always goes back to the idea: is it better to let one innocent person be convicted of a matter or to let nine guilty go free? In a situation where you have one in 20 Cart or Eba judicial reviews being successful after a hearing, that shows that there has been an error in law in relation to the specific individual case, which has potentially incredibly serious consequences when one is dealing with asylum and immigration cases. In principle, I do not think it is a question of playing with numbers and saying, “Well, only 5% are successful, so it does not matter—we can get rid of the whole position in terms of allowing errors of law to be identified and reviewed at second instance and by way of judicial reviews in other cases.”

I also agree with what Joe Tomlinson has said, which is that in the Cart and Eba situation, one is dealing with the fact that judges, both at first instance and in the upper tribunal, have looked at the matter and therefore are legally trained already, but they are not infallible. That is the whole point about judicial review; matters are not infallible. One would hope that there would therefore be a much lower percentage of areas in which they have been shown to err in law than is the case for simple administrative bodies, which are not necessarily particularly legally qualified and are certainly not judicial bodies.

I would be wary of the attempt to compare matters that are not alike by saying that there is a 50% success rate on non-immigration judicial reviews. I must say I would be very surprised at the basis of that statistic, but if it is the case, then—[Inaudible.] The point is that you are stopping those 5% of cases ever being rectified, and that is not a situation that I think Parliament should properly be allowing.

[The Chair]

Last point, Caroline, because there are other questions. Actually, Michael just wants to come in on your previous question, before you make your final point.

Michael Clancy: I agree with what Aidan O’Neill has said. Of course, in Scotland it is a different question in some respects, because as far as I recollect from the IRAL report, there were no statistics about the situation of judicial review in Scotland. The scale of things like that in Scotland is quite different, and one might expect only 100 judicial reviews to get to the Court of Session in any one year. The proportionality arguments about the use of judicial time and the expense are of a different order and would need to be separately vouched, I would say, before the same kind of decision taken in relation to Cart would be taken in relation to Eba-type cases.

Let us remind ourselves exactly why we have judicial review, which perhaps creates a tension between what one might describe as ministerial legality or quango legality judicial reviews and other types. Lady Hale said in Cart that

“the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law—that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise.”

I think that that grounds us on the basis for having a law of judicial review, and it is something that we should not depart from without very serious consideration indeed.

[The Chair]

Unless you have a really pressing question, Caroline, I would like to move on to the next speaker, because you have taken quite a bit of time.

[Dr Johnson]

I have just one quick question.

[The Chair]

Right, one quick question and one quick answer.

[Dr Johnson]

Q I do understand what you are saying about the importance where the decision has been taken by Ministers or Government, but I am still not clear why it is important to review the opinion of another judge. How do you ensure that the number of erroneous judgments falls? Although I can see that having the Cart review has picked up some cases where judgments were unlawful or wrong, how, on an ongoing basis, do the judiciary make sure that those numbers fall?

[The Chair]

Who wants to take that?

Aidan O'Neill: I do not understand the question. How does the judiciary make sure that—

[Dr Johnson]

Some people say that 0.2% of the judgments are incorrect, and some people say 5%.

Aidan O'Neill: Nobody is saying 0.2% reputably. I do not think one can take that on board. The IRAL report even accepts that its figure was wrong, so do not even start on that. You start with the claims made subsequently when this Bill was introduced, which were that the figure was at least 3%. That massive change was made in response to work done by academics such as Joe Tomlinson. Let us not start from 0.2%; let us use the better evidence we have heard so far, which is at least, or around, 5%. Ask me the question on that basis.

[Dr Johnson]

Okay, so on the presumption of—

[The Chair]

Order. Janet Daby.