Judicial Review and Courts Bill

David Lammy Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

I begin by congratulating the right hon. Member for Esher and Walton (Dominic Raab) on his promotion to the office of Lord Chancellor and Secretary of State for Justice. I look forward very much to working with him and going toe to toe on the important issues of the day. I put on record how grateful I was for the manner in which his predecessor, the right hon. and learned Member for South Swindon (Robert Buckland), pursued his role. We were able to have very good Privy Council discussions on important issues relating to the justice system during the pandemic. I wanted to put that on record.

Hon. Members may have seen that I am joined by my hon. Friend the Member for Hammersmith (Andy Slaughter), who returns to the Front Bench to assist the Opposition in all matters legal. I pay tribute to him and to my hon. Friend the Member for Kingston upon Hull East (Karl Turner), who does so much to advance the case for legal aid.

To govern is to choose, and all Governments must choose what they will prioritise. No Government can do everything at once—not even this Government—and the Bill could not be a clearer indication of what they have chosen to prioritise and what they choose to ignore. As we come to debate the Bill, the justice system is at breaking point with more than 60,000 Crown court cases delayed, victims dropping out of the process due to waiting years for their case to go to court, and women up and down the country rapidly losing confidence in the criminal justice system. Yet here we are debating judicial review. Government Members might say that this is a manifesto commitment. Then again, so was not clobbering ordinary people with tax rises. What the Bill says about the Government’s priorities is that they are more concerned with constitutional vandalism than with fixing the mess they have made of the justice system.

[Joanna Cherry]

On constitutional vandalism, the Law Society of Scotland has said that the abolition of Cart judicial reviews in Scotland by clause 2 of the Bill

“has the effect not of modifying a rule which is special to a reserved matter, but rather of creating such a rule, as it means that, in future, there will be a difference in the amenability of reserved and devolved tribunals to judicial review.”

Does the right hon. Member agree that, if it is right about that, there should be a legislative consent motion for the Bill?

[Mr Lammy]

According to the devolved settlement, that must be the case. Perhaps the Secretary of State or the Minister will address that.

“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”

Those are not my words but the words of the right hon. Member for Haltemprice and Howden (Mr Davis), who I see in his place. He has described the reforms as “un-Conservative” and

“an obvious attempt to avoid accountability.”

I will let that hang in the air of the House of Commons.

There is no legitimate need to meddle with judicial review, least of all when there are so many other pressing issues to deal with. What message does it send to the victims of serious crime in a time of crisis that the Government’s first objective is to weaken quashing orders —one of the tools available when a court finds that a public body or the Government have acted unlawfully?

[Kim Johnson (Liverpool, Riverside) (Lab)]

Does my right hon. Friend agree that the collapse of the Hillsborough trial identified flaws in our legal system and caused untold trauma to the families of the 97? Will he join me in urging the Government to bring the Bill back with amendments to include automatic non-means-tested public funding for bereaved families when public functions are involved?

[Mr Lammy]

My hon. Friend rightly raises the Hillsborough families, and she knows that, just like the Grenfell families, they have relied on judicial review. She raises that in relation to legal aid and will know that I have made such a commitment at the Dispatch Box. We will wait to see whether the Government will meet us with that important pledge on behalf of any individual facing tragedies of that sort.

The Bill seeks to make profound changes to how quashing orders work and, crucially, to what redress victims of unlawful decisions can receive from the courts. Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. The effect of that would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision.

On the face of it, that might seem to be quite a small change to judicial review, but the effects would be profound and chilling. The Government’s own consultation paper even conceded that a prospective-only quashing order would

“impose injustice and unfairness on those who have reasonably relied on its validity in the past.”

Let us look at how that would work in practice. When the Supreme Court quashed the employment tribunal fees in 2017, the effect of its declaration was that fees were identified as being unlawful from the start. Thousands of workers unlawfully denied access to justice therefore had their tribunal fees refunded. Had a prospective-only order been made, they would have been left out of pocket, despite the fees being ruled unlawful. How can that possibly be right? What would be the point of bringing a claim for judicial review, if people knew before they even started that they would be no better off? What is the purpose of judicial review if it cannot hold public bodies rightfully to account?

That is just the tip of the iceberg. As more people are left without the redress they deserve, many more will be put off bringing their own claim, even if those were perfectly valid. As a result, unlawful decisions made by the Government—by any Government, of any colour or stripe—or a public body will go unchallenged. Perhaps, however, that is what the Government want, and the right hon. Member for Haltemprice and Howden certainly seems to think so, when he argues that the Bill is simply a way for them to dodge being held accountable. We all know that the ability of members of the public to challenge public bodies is vital to maintain a country built on good governance.

[Joanna Cherry]

I am grateful to the right hon. Gentleman for giving way a second time. Is the reason for the attack on judicial review that this Government have had a bloody nose repeatedly in the courts—on employment tribunal fees, asylum issues and benefits, and in the Prorogation case—and they do not like to be held to account?

[Mr Lammy]

The hon. and learned Lady’s point has so much merit. No Governments enjoy judicial review, but the point when in government is to be bigger than that. I say to the Secretary of State that this is his opportunity to be big.

[Dr Kieran Mullan (Crewe and Nantwich) (Con)]

Is the right hon. Gentleman familiar with and has he reflected on the words of a former Labour Home Secretary, who criticised

“unaccountable and unelected judges usurping the role of parliament, setting the wishes of the people at naught and pursuing a liberal politically correct agenda of their own”?

How have those words informed his remarks today?

[Mr Lammy]

I have not reflected on that statement very much.

I was reminded recently of the importance of judicial review by the infamous “Judge over your shoulder” leaflet, which has been published since 1987 to remind civil servants of the importance of sound decision making. The leaflet advises civil servants of the importance of good governance and of making decisions effectively and fairly to avoid those decisions being found unlawful. It recognises that administrative law and, in this case, judicial review played an important part in securing good administration by providing a powerful method of ensuring that the improper exercise of power can be checked.

Frankly, that is why having effective judicial remedies is so important to maintain good governance. The threat of judicial review is a powerful tool to encourage decision makers to make decisions well and fairly. If the power of quashing orders were to be neutered in the way clause 1 seeks, not only would that leave victims of unlawful decisions without the remedy they deserve, but it would reduce the motivation for public bodies to take care when making decisions. I agree with the Law Society of England and Wales when it says that that would have a truly chilling effect on justice in this country and we must question why the Government are even considering the changes in clause 1. Those changes go far beyond what was recommended by the Government’s own independent review of administrative law. The review made no recommendation that quashing orders should be prospective only. It specifically recommended against that type of presumption.

[Wera Hobhouse (Bath) (LD)]

Does the right hon. Gentleman agree that the sign of a mature democracy is that it protects the marginalised and vulnerable? Government Members completely misunderstand that point.

[Mr Lammy]

The hon. Lady is absolutely right. That ought to be a principle across the House, not a party political issue.

To return to the review of administrative law that the Government set up, in their consultation response, the Government acknowledge that presumptions were not recommended by the review panel, and they were generally met with scepticism from respondents to the consultation. Indeed, it is not even certain whether prospective-only remedies would withstand a challenge before the European Court of Human Rights for failure to provide an effective remedy. Given the Government’s own panel of experts, and the sector, are opposed to that change, and given the harmful effect that it would have on victims of unlawful decisions, as well as on governmental decision making, we must ask why the Government are keen to make this change. Is it really, as they suggest, to provide courts with greater flexibility, or is it simply to insulate the Government from being held to account, and to weaken the power of claimants to seek compensation?

Clause 2 seeks to abolish Cart-type judicial reviews. For Members who may not be familiar with what those are, Cart judicial reviews allow individuals to ask the High Court to review decisions made by the upper tribunal to refuse a right of appeal. The vast majority of Cart reviews are sought by those who find themselves in horrendously desperate situations and they invoke some of our most fundamental human rights, including in some cases the difference between life and death. During the review of administrative law that the Government set up and the consultation stage, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review has been used to put right an incorrect decision made by the upper tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive lifesaving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals faced persecution or their lives would be at risk.

[Mr David Davis (Haltemprice and Howden) (Con)]

I thank the right hon. Gentleman for giving way and I am pleased I have provided half his speech for him. I have an important point in support of his argument. Much of the Government’s argument on Cart appears to be that there are very few successful cases. First, I think they got that wrong—they thought it was less than 1%, but it is probably 6%. Secondly, the point the right hon. Gentleman is making is that, when they get it wrong, the consequences for the individual are dramatically bad. We must always think that through. When dealing with law, we must protect the weakest from the worst consequences.

[Mr Lammy]

The right hon. Gentleman makes his point very well. He is absolutely right. In each of the cases that I mentioned, judicial review was able to correct a wrong decision by the upper tribunal and enable fundamental injustices to be prevented, as he indicates. If the Government were successful in abolishing Cart, that crucial safeguard would be lost. That would not affect anyone in this Chamber, but it would affect very vulnerable people. Again, one must ask why the Government are attempting to make this change, and why they are using legislative time now to do it.

When the panel that the Government set up to look at these issues first recommended abolishing Cart judicial reviews, it did so on the basis that only 0.22% of them were successful and that public money could be better spent elsewhere. We know now that that figure was based on wholly inaccurate data. Even the Government now accept that the success rate is likely to be at least 15 times as high as previously thought. It is indefensible for the Government to base decisions that could make the difference between life and death on evidence that is so hopelessly flawed.

[Laura Farris (Newbury) (Con)]

I hear what the right hon. Gentleman says about Cart judicial reviews, but can he explain why Lord Hope, the retired Supreme Court Justice who sat in the Cart case at the Supreme Court, spoke in the House of Lords on 22 March in favour of abolishing Cart-type judicial reviews? He said:

“We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]

[Mr Lammy]

That is one reflection among many who sit on the other side of the debate, including those who have looked into this matter in great detail.

Why are the Government still pushing ahead with this reform? If we accept the Secretary of State’s reasoning, it comes down to cost and

“a disproportionate use of valuable judicial resource”.

In reality, however, the cost of Cart reviews is no more than £400,000 a year. That is a drop in the ocean compared with the Ministry of Justice’s overall budget. It is less than the Department for Digital, Culture, Media and Sport spent on its art collection last year. Put another way, the Government Legal Department’s total administrative costs for the last year were £226.7 million, more than 500 times the upper estimate for yearly Cart judicial review costs.

As with clause 1, there could be another, murkier reason that the Government are so keen to abolish Cart judicial reviews. In its press release, the Ministry of Justice said that

“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

With those words, the Government let their mask slip. If that is indeed their intention—I look forward to the Lord Chancellor confirming that it is not—that would allow them to insulate whole sections of Government decision making from challenge by members of the public. I am sure that Members on both sides of the House would agree that that would be a truly chilling development. Governments have to be challenged. Governments suffer defeats in the courts. Why would we start to oust Government decisions in other areas, beyond this small but important area of immigration law?

Beyond judicial review, there are several provisions dealing with a shift towards greater use of online procedures and technology. While Labour supports measures that would make the justice system more efficient, we must ensure that no one is left behind and that adequate safeguards are in place to prevent serious injustices. As the Bill currently stands, there is only a vague duty for the Lord Chancellor to provide digital support

“for those who require it”.

Labour feels that a specific commitment to assist digitally excluded individuals would offer better protection. While the creation of an online procedure rule committee is a positive step, the Bill currently puts too much power in the hands of the Lord Chancellor. As it stands, the Lord Chancellor could amend, repeal or revoke any law he feels necessary to create the online procedure rules, and he would only have to consult the Lord Chief Justice and the Senior President of Tribunals before making amendments to them.

The last area I want to address is the coroners court. As with provisions on criminal procedure, any efforts to reduce “unnecessary procedures” or allow for greater online participation must be accompanied with robust protections for those who could be excluded. More fundamentally, there is nothing in the Bill to address the inequality in the inquest system that sees bereaved families denied the legal aid that my hon. Friend the Member for Lewisham, Deptford (Vicky Foxcroft) mentioned earlier, while the state has the benefit of the finest Government lawyers that taxpayers’ money can buy.

[Yasmin Qureshi (Bolton South East) (Lab)]

Does my right hon. Friend agree that hospital authorities can hire Queen’s Counsel and spend millions of pounds on defending themselves, yet lone individuals cannot even get legal aid following the death of their immediate family? How disgusting is that?

[Mr Lammy]

It goes to the fundamental principle in our justice system of trying to have equality of arms. That is why the Bill is of so much concern.

[Vicky Foxcroft]

Just to reiterate the point about Colette, Andy and Amanda, and the pain they are going through after losing their daughter, they then have to crowdfund money to try to make sure that lessons are learnt. We must ensure we have a legal aid system in place that protects them. On the Labour Benches, I believe the shadow Secretary of State will be saying just that.

[Mr Lammy]

My hon. Friend’s championing of these issues is so important. The cupboard has been stripped bare and a real crisis is emerging, with vast legal aid deserts across the country. You cannot level up the country if people cannot get access to advice. That is the point and she is right to make it.

The Secretary of State made much of my youthful endeavours at the Dispatch Box 17 years ago. I said to him from a sedentary position that, on reflection, I was young and naïve. I say very gently to the Secretary of State that he is a younger man than I am. He needs to reflect on that. I did table an ouster clause to the asylum Bill at that time, but I listened, reflected and removed it before it could be enacted. The question today is this: will he do the same? Will he be the big man we know he is capable of being and remove this clause from the Bill, as he is being encouraged to do by such a senior colleague as the right hon. Member for Haltemprice and Howden?

The Bill is unnecessary and unwanted at a time of crisis in the justice system: it robs citizens of effective remedies when they have been wronged by the state; it would leave some of the most vulnerable people in society without a last defence against unlawful Government action; and it could act as a prelude to a wider assault on the rights and protections of individuals. I ask the Lord Chancellor, when the Government should be tackling the backlogs in the Crown courts, the magistrates and the employment tribunals, when they should be trying to repair their appalling record on prosecutions and convictions for rape and serious sexual assault, when they should be fixing the staffing crisis in prisons and probation, why have they chosen to protect themselves? Labour will be voting against the Bill today. I ask Members on both sides of the House to do the same.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

I am grateful to all right hon. and hon. Members who have contributed today. It is an honour to follow the hon. Member for Hammersmith (Andy Slaughter). He asked if he should be welcoming me to my place; I am grateful to him for that. I also welcome him. I know that he performed his role for many years, from 2010 to 2016, but it is good to see him back in his place. I look forward to debating with him.

This is my first opportunity to speak in the role of Courts Minister, so I want to take a moment to put on record my enormous gratitude to all those on the frontline in our court system, including our judiciary, practitioners, all court staff and clerks. They have all put in one hell of a shift during the pandemic to keep justice going in this country. It makes me proud to be British.

The one thing that I would stress, having visited the courts and seen how they have had to adapt, is just how much social distancing rules disrupted the judiciary. The 2-metre social distancing particularly affected juries in the Crown court. It has been very difficult. For that reason, a significant backlog has accumulated and we have been open about that. The key thing is that we have been active in bringing forward positive measures to address that backlog. We provided £250 million of funding during the pandemic, which enabled us to lift the limit on sitting days in the Crown court, and rapidly to roll out technology to keep justice going online during lockdown, which was incredibly important. Of course, we also brought forward our famous Nightingale courts, which have done an amazing job in helping us, particularly with bail cases.

This Bill plays its part in those positive steps to address the backlog. The common thread is streamlining justice: digitising in-person processes where appropriate; removing Cart judicial reviews, which use disproportionate resource; and enabling more triable either-way cases to be sent from the Crown court to the magistrates so that Crown courts have more capacity for dealing with very serious criminal trials, potentially including rape and murder. The Bill will build on the lessons of the pandemic. It streamlines our justice system by digitising a range of procedures so that we bear down on the backlog and at the same time improve the day-to-day experience of our constituents in the court system.

We have had a wide-ranging debate. Inevitably, the focus has been on the measures on judicial review. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee, made a wonderful speech, not least when he extolled the glories of English liberty. He said that the judicial review reforms are measured and focused, and I do not think that he would be described as an enemy of the judiciary or someone who supports revolutionary measures. These are sensible, proportionate measures.

The right hon. Member for Tottenham (Mr Lammy), with whom I look forward to debating further, said that these measures weaken quashing orders. I take completely the opposite view. The measures strengthen quashing orders and thereby strengthen judicial review. The best way to prove that is to refer to an important and very real case study, which many hon. Members will remember, particularly those, like me, who served in the last Parliament and represent rural constituencies.

Members may recall the problems caused in 2019 when Natural England decided to revoke general licences for shotguns—shotguns that enabled farmers, landowners and gamekeepers to shoot pest birds. That happened in response to a threatened judicial review. The decision created immediate widespread chaos for licence holders, who were left without the necessary legal certainty as to how they could protect their livestock. I know this because I was on the receiving end of emails about the issue from my constituents, as many other hon. and right hon. Members will have been.

The uncertainty continued for a period of seven weeks, until Natural England was able to issue new licences. It is not for me to speculate about how the judicial review might have proceeded if it had gone right through the court. However, we can refer to the advice that might have been given to Natural England. Had the remedies included in clause 1 of this Bill been available at the time, we can suppose that Natural England might have been more willing to contest a judicial review in the knowledge that, even if the existing licence scheme were found by the court to be unlawful, the court had the ability to act prospectively—that is, to protect past reliance on old licences, which, after all, was made in good faith; farmers using those shotguns would have done so in the belief that they were acting lawfully.

In my view, we should always seek to avoid, where possible and without good reason, acting retrospectively when the person concerned could not possibly have known what the case would be in the future. A remedy of suspension could also have been used, because of course it took three months to bring forward the new licences. If the suspension had been for that sort of period of time, we could have avoided detriment. That is the point. Those who brought the case would still have got their “victory in court”, as my hon. Friend the Member for Bromley and Chislehurst talked about earlier, but the key point is that we would have spared our constituents detriment. That is why these measures are positive. That is why they support a very important principle of judicial review that has not been mentioned, which is better public administration of the law in the best interests of our constituents. As the National Farmers Union said at the time, “People have been left without a legal means to control problem birds. Their inability to protect livestock, crops, wildlife and livelihoods in ways which the law has until now allowed has left them concerned and angry.” Now we would have a way to help them in practice.

Turning to Cart judicial reviews, again there was lots of passionate argument on this very important point of the Bill. My right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright) made one of the most fundamental points about parliamentary sovereignty where we have to question whether it was the intention of this place to legislate so that appeals would go beyond what is effectively the superior court of appeal within the jurisdiction of the tribunal. We think that was not the case.

My hon. Friend the Member for Newbury (Laura Farris) made an absolutely brilliant, barnstorming speech. On Friday she took apart Labour’s case for fire and rehire and today she has taken apart its case on Cart JR. She asked the very important question of why immigration should be the exception when so many other jurisdictions of law do not have, with no offence to the hon. and learned Member for Edinburgh South West (Joanna Cherry), three bites at the cherry. This is a very important point. The idea of having a superior court like the upper tribunal is absolutely consistent with the principles of article 13 of the European convention of human rights, so three bites at the cherry should not be needed to be consistent with that article of human rights. That is a fundamental point and we respect it with our reforms to judicial review.

Turning to the right hon. Member for Tottenham, he said that he was young and naive when he supported remarkably similar measures back in 2004. I think it would be remiss of us not to have two bites at the cherry with regard to Labour’s Asylum and Immigration (Treatment of Claimants, etc. ) Act 2004. He may have been young and naive but the Prime Minister was Tony Blair, and he was not young and naive. Why does the right hon. Gentleman think that the Government led by Tony Blair thought they should bring forward a Bill like that—because it was some radical assault on the judiciary?

Let us remind ourselves of what that Act did. It contained a provision to remove judicial review from immigration and asylum appeals. That probably sounds a bit familiar. What was the justification? I hope that the hon. Member for Glasgow North East (Anne McLaughlin) is listening. The justification, as revealed by the right hon. Gentleman in Committee at that time, because he was the Minister concerned, was that only 3.6% of cases were successful. That was the argument that Labour used in 2003 and 2004: does it ring any bells? What was the method? The method was an ouster clause, but not any ordinary ouster clause—not a tightly drawn ouster clause like the one in this Bill—but an ouster clause drafted so widely that in Committee the then Constitutional Affairs Minister admitted that it was the mother of all ouster clauses. Who was the Constitutional Affairs Minister? It was the right hon. Gentleman.

[Mr Lammy]

I hesitate to interrupt the hon. Gentleman in his oration, because he was getting into his groove, but I would just say to him that it was dropped—it was never enacted, so poor it was.