Judicial Review and Courts Bill (First sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Chair]

I am conscious of time. As I said earlier, we have to move on to the second panel soon, so this will be the final question. I call Dr Caroline Johnson.

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

Q I have a question about the potential for quashing judgments not to be retrospective. To what extent does the legislation provide protection for the individual and balance that with the potential for political activity? How does it make sure that judges have good guidance on when they should and should not use the measures that will become available to them?

Professor Varuhas: One of the motivations for the provisions is to provide the courts with flexibility to adapt remedies to the particular needs of the given case. That is a response to a series of Supreme Court decisions that have held, contrary to long-standing authority, that a funding of unlawfulness automatically voids administrative measures as if they never existed. That has never been the position, because there has always been remedial discretion to modulate the effects of unlawfulness.

The Bill reasserts that remedial flexibility so that remedies can be tailored to the particular needs of relative interests and values implicated in the facts of the case. In proposed new section 29A(8) of the Senior Courts Act 1981, you have a list of factors that will guide courts in exercising their discretion, and those factors are drawn from the common law, so dovetail with pre-existing doctrine. Importantly, they give litigants and the Government fair warning of the factors that will bear on remedial decisions. Subsection (8) requires that

“the court must have regard to”

those factors, which has the benefit that the court will apply the same framework in every case. That provides consistency of principle and ensures transparency, because the court will have to work through those particular factors to reach a conclusion regarding what type of order ought to be given on the facts of the case.

In my view, one problem with subsection (9) is that it erects a presumption. It is a particularly weak presumption, and therefore one might question what the justification for it is, but more generally I am not necessarily in favour of a presumptive approach one way or the other, because that can undermine the court’s capacity to adapt to the particular facts of the case and respond to the particular factors that arise—the public interest in good administration, the interests of third parties and so on. Necessary flexibility is built into the scheme, but there is also fair warning of the factors that will be taken into account pursuant to subsection (8), which is a particularly important provision in that regard.

[The Chair]

I am conscious of the time, and I think the Minister will want to ask the final question, so I will take a short response to Dr Johnson’s question from one of you. Then I will move across to the Minister before we close the panel.

Professor Ekins: Briefly, I agree with everything that Jason said. One could add a little more detail perhaps to the factors in subsection (8), tying in with Sir Stephen’s point about the significance of whether something is a legislative act. That seems like something that should be at the forefront of the court’s mind. It is a weak presumption in subsection (9). One could either remove it or tailor it, narrowing it so that the presumption arises only where the decision making in question is legislative in character or on a general policy decision, rather than casework, to use Sir Stephen’s term. At the moment, it is a very broad presumption, and a very weak one, and it might be more useful if it were narrowed and applied in a more focused way.

--- Later in debate ---

[The Chair]

Q Thank you. Dr Jonathan Morgan, do you want to say a bit about yourself and your view on the topic? Then we will open up for questions.

Dr Morgan: My name is Jonathan Morgan. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. Like any academic, I would be delighted to address you on the sexy subject of constitutional theory, but having heard what my learned friend has experienced, I will not do that now. I will just say a couple of things about the Bill before us.

It seems to me that clause 1 is highly welcome, but it needs two significant amendments to make it perfect. Clause 2, which is on the Cart review, is compatible with the rule of law, but there are some very real costs to doing this, and Parliament needs to confront them. One of the costs is that the very few people who succeed in Cart reviews will not have that avenue in future. I am happy to substantiate those in questions, but I will not enlarge on that now.

[Dr Johnson]

Q I have a question for Dr Morgan. I am not a lawyer, so forgive me if this question is insufficiently sophisticated. The Cart review is a judicial review of the upper tribunal in the immigration service. My understanding is that judicial reviews are designed to review the capacity of the Government to make a lawful decision, but we have heard that the upper tribunal is not a Government decision; it is a court decision. Is the Cart judicial review unusual in that respect? Are there other examples, or is it an anomaly that there is a review of a decision by a senior court, rather than a Government decision?

Dr Morgan: I think you have put your finger on it, lawyer or not, because Cart deals with a fairly unusual situation, exactly as you have said. This is to do with the level of appeals within the judiciary. Critics of clause 2, who say that this is doing violence to the rule of law and is setting a bad precedent by immunising the Government from being judicially reviewed, are therefore somewhat missing the point. Clause 2 has its cost, but I do not think it immunises Government decisions from judicial review. It simply says how many reviews or appeals there should be within the judiciary. I was here for the previous panel of witnesses, and in terms of whether you have permission to review within the court system, the number of “bites of the cherry” is a good way to put it.

One overall criticism of the Supreme Court might be that it failed to give proper respect to the tribunal system as a branch of the judiciary. It had a slightly legacy, old-fashioned view of the tribunal system as something that needed to be under the supervision of the High Court, and so on. That is why Lord Carnwath, who, as we have heard, is a former Senior President of Tribunals, has been a critic of the Cart decision. It is important to see clause 2 as to do with arrangements within the judiciary. Yes, there is an ouster clause in clause 2, but it does not immunise administrative or Government decisions. It immunises decisions of what is, in effect, a court by another name—the upper tribunal.

[The Chair]

Dr Feldman, do you want to come in on that? I noticed that your volume was quite low. If possible, could you raise your voice a little bit?

Professor Feldman: I beg your pardon; I did not hear that.

[The Chair]

Q Would you like to respond to the question? If you do, could you please raise the volume a little? You were very quiet in your opening remarks.

Professor Feldman: Thank you. The only thing I would add to what Dr Morgan has said is that judicial review is seen as a general safety net. One of its functions is certainly to scrutinise Government decision making and action, but it is there as a backstop to deal with unlawful action by any public body. One starts with the presumption that judicial review is available unless there is some specific reason for excluding it. It is clear that the justification for interfering with access to judicial review may be stronger where a body is a judicial body, and where a litigant has already had the chance to have his or her case heard by an impartial and independent tribunal, rather than simply by an administrative body.

[Dr Johnson]

Q I have a quick question, and forgive me for not knowing this. The upper tribunal is a superior court of record that, according to my notes, is equivalent to the High Court. Is it normal for High Court decisions to be subject to judicial review?

Professor Feldman: The answer is that the courts held in Cart that being a superior court of record does not immunise a body from being subject to judicial review. For practical purposes, the High Court is immune to judicial review, because it is the High Court that carries out judicial review. It extends, as they used to say, to all inferior courts and tribunals—that is, below the level of the High Court—as well as public officials. It is a matter of basic principle that the upper tribunal was to be subject to this, even if, as Lord Justice Laws said in Cart, the upper tribunal would be seen as the avatar of the High Court.

Dr Morgan: In my view, this is what went wrong in 2007, so apologies to any Members who were in Parliament then. In 2007, Parliament thought that by designating the upper tribunal as a superior court of record, it would immunise it from judicial review. That is what the Government argued in Cart, but they failed to convince the High Court, the Court of Appeal and the Supreme Court.

To ingratiate myself with Members, I will say that the fault was not only that of Parliament but that of the Leggatt report on tribunals, which said that there should not be judicial review of the upper tribunal and that by designating it a superior court of record, Parliament would immunise it from judicial review. I am afraid that Sir Andrew Leggatt turned out to be wrong on that when it got to the courts. It is true that Leggatt had said that there should be an express ouster clause, which Parliament did not put in. If Parliament in 2007 had gone for the belt-and-braces approach and not relied only on the status of the upper tribunal as a superior court of record, Cart would never have happened and we would not be here today discussing it. In a way, this problem has been 20 years in the making.

[Dr Johnson]

Q Just to be clear, it is the equivalent of the High Court but it is not treated as such.

Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.

[Andy Slaughter]

Q May I clarify whether, at present, a judge can make a quashing order limiting or eliminating its retrospective effects, or suspend the effect of a quashing order? There has been some debate around that, given the proposals in the Bill.

Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.

--- Later in debate ---

[James Cartlidge]

Q Thank you very much, that is a fair point. On the matter of resource, it clearly is a political point. It is, after all, the most fundamental role of Parliament historically. You will be aware that we referred to the 2004 Bill—I think it was introduced in 2003—and you have made the point that it is effectively long-running governmental aim, regardless of party to address this. I think I am right that in when the Immigration and Asylum (Treatment of Claimants, etc.) Bill was in Committee, the then Minister, the right hon. Member for Tottenham (Mr Lammy), said that at that time it was something like 3.6%, so it seemed to be viewed then by a Government of a different colour, on the proportionality issue, disproportionate.

I had the great privilege of attending the Lord Chancellor’s swearing in. One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time, which is incredibly precious. Arguably, there is a context which goes back some years which seems to recognise on both sides that this is disproportionate in resource terms.

Dr Morgan: I agree. This does not seem to be a partisan point. It is about how best to deploy the resources of the judiciary. I hope the judges have been consulted on this reform, but retired judges who speak on it in the House of Lords seem to be sympathetic to the objectives.

[Dr Johnson]

Q Dr Morgan, you talked about people in these situations being very vulnerable. Obviously, it is important that we get as many of these decisions correct as possible. Why are the very few appeals that are successful, successful? Are there other ways in which we could reduce the number of people who may have had an erroneous decision? In particular, where there has been a win in the Cart judicial review, is it due to legal technicalities of process and, if so, how much difference would that have had on the actual decision of the upper tribunal if they had followed the process? Would the person have had the same outcome?

Dr Morgan: The answer might be to a slightly different question. I refer the Committee back to some things that were said in Cart itself. Both Baroness Hale and Lord Phillips, two Presidents of the Supreme Court at different times, said the reason why there are so many immigration and asylum challenges is because people are desperate. Lady Hale said:

“There is every incentive to make the road as long as possible, to take every possible point, and make every possible application.”

She went on to say she did not blame people, because people are desperate, and we can hardly blame them for doing this, but she said that that was why there was such a problem. It does create a resource problem for the courts, because in the immigration and asylum system there is bound to be a huge number of applications, even if most of them are doomed to fail. In fact, Lord Phillips seemed to recognise that Cart was sowing the seeds of a great problem. He said:

“The stringency of the criteria that must be demonstrated will not discourage a host of applications in the field”.

He was the judge who came closest to saying we should not have had Cart judicial reviews, as they are now known, at all.

That is one reason why this creates such a problem: people will try every avenue to challenge a decision, even in a fairly hopeless case, for reasons that we can all appreciate. That is why I think an even more stringent approach than Cart is perhaps needed to close down the avenue, if that is what you want to do.

[Dr Johnson]

Q I guess I was asking about concern about those few people who may have had a change in decision and would argue against that change. I am interested in understanding the reality of those people’s situations. Would the decision of the upper tribunal have been the same had the legal process been followed? Are those decisions based on legal technicality rather than merits of case?

Dr Morgan: The statistics that the Government presented in their response to the consultation used a criterion of success that I think answers your question. A successful Cart judicial review did not just mean that the High Court sent it back to the upper tribunal; you then had to win in the upper tribunal, so you actually had a good case on the facts. The Government came up with a figure of 3.5% success in that sense, so I do not think that they could be written off as legal technicality cases, although some people do successfully get a Cart JR and then fail when it goes back to a substantive hearing, and it could fairly be said that some of those are legal technicalities.

Members in the Second Reading debate referred to various case studies of actual live cases where something had clearly gone badly wrong and it was only a Cart JR that rescued it. I cannot remember whether it was 50 cases per annum or 50 cases in total—it is not a huge number—but in each case, it really matters to someone’s life.

[The Chair]

Are there any final questions? We are running short of time, but I will take one more if anybody wants to come in.

There are no further questions from Members, so I thank both witnesses for coming in to give evidence in person. It has been very useful indeed.

Ordered, That further consideration be now adjourned. —(Scott Mann.)