Judicial Review and Courts Bill

Dominic Raab Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Dominic Raab)]

I beg to move, That the Bill be now read a Second time.

This Bill makes good on our Government’s manifesto pledge to ensure that judicial review is not subject to abuse and to deliver more effective, more efficient justice for the citizens of our country. I pay tribute to my right hon. and learned Friend the Member for South Swindon (Robert Buckland) for all of his work in preparing the Bill and for his outstanding tenure as Lord Chancellor and Justice Secretary.

I first want to address the so-called Cart reviews. That is the means by which the High Court reviews decisions of the upper tribunal to refuse permission to appeal a first-tier tribunal decision.

[Joanna Cherry (Edinburgh South West) (SNP)]

Will the right hon. Gentleman give way?

[Dominic Raab]

May I make a bit of progress?

Let me take one immigration case by way of illustration. A claimant whose leave to remain was revoked because of his dishonesty challenged that decision in the High Court. He was granted permission to bring his judicial review despite exhausting the appeal process at the immigration tribunal. The challenge was eventually dismissed, but not before it was sent back to the upper tribunal. At that point, the judges, Messrs Lane and Ockleton, noted that

“it appears that permission was granted on grounds which had no merit, ought to have been withdrawn by their proponent, and do not seem to have been regarded as giving a reasonable prospect of success even in the granting of permission.”

That is just one illustration. To give a sense of scale, on average, there are 750 judicial reviews against the upper tribunal alone each year, the vast majority of which are immigration cases. The success rate is just 3.4%. For completeness as well as appeals on immigration, the upper tribunal also hears cases on administrative and regulatory matters—things such as social security tax and property cases.

[Joanna Cherry]

I am grateful to the Lord Chancellor for giving way. I would like to intervene later on the specifics of this matter, but may I start by asking him this: the right to judicial review in Scotland is protected by article 19 of the Treaty of Union and it is a devolved matter under the Scotland Act 2016. His predecessor gave me a written assurance that the focus of this Bill would be on UK powers and procedures relevant only to the jurisdiction of England and Wales. Will he tell my why that promise has been broken?

[Dominic Raab]

It has not been broken, but I shall come on to address that when I deal with the devolution dimension in a little while.

Of course there must be accountability, but allowing such a large volume of flawed challenges just skews the system. Allowing a legal war of attrition—not just against the Government, but, as in this case, against the judiciary themselves—undermines the integrity of the two-tier tribunal process, which was set up precisely to deal both fairly and efficiently with immigration cases. That wastes court time and taxpayers’ money, which should be focused on reviewing more serious and credible cases. The Supreme Court Justice Lord Brown foresaw that this very problem would arise in his judgment in the original Cart case back in 2011 and he said then that

“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

Regrettably, he was proved right. It is also worth noting the more recent commentary by Lord Hope of Craighead, another of the presiding judges in the Cart case, who said in the other place earlier this year that these types of reviews have not worked and that it is time “to end them.”

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

I am very grateful to the Justice Secretary for giving way.

Over the past few years, the law has been the only way that any justice has been allowed for social security claimants. Three different judicial reviews were upheld and they said that what the social security Secretary had undertaken was unlawful—both on universal credit for disabled people and for single mothers. Which of these judicial reviews would have been allowed under this Bill?

[Dominic Raab]

Of course I cannot second guess the judicial decisions made in individual cases, but what I can say is that of course we want to protect the integrity not just of judicial accountability, but of the tribunal process, which we have established precisely to deal with those cases as well as others that I have discussed. The Bill will address the problem in a sensible and proportionate way, preventing Cart appeals except in the most exceptional circumstances, such as the upper tribunal deciding a type of case outside its jurisdiction, in bad faith or with some fundamental procedural error, such as not hearing one side of the case, which would clearly be wrong. Our approach will ensure that the 180 judge-days spent on Cart reviews, every year, are no longer wasted. In that way, taxpayers’ money is saved and the immigration system can function more effectively.

I would be interested to know whether Labour will support us in this matter. I have done my homework—[Interruption.] The right hon. Member for Tottenham (Mr Lammy) is laughing, but if Labour plans to vote against this Bill on the basis of Cart, I would point out that the shadow Justice Secretary personally proposed a much broader so-called ouster clause back in 2003 in Labour’s Asylum and Immigration Bill—[Interruption.] The right hon. Gentleman said that he was young and naive. I am not sure what that makes him now. Forgive me if I am reminding him of a stressful moment in his career, but it was the Asylum and Immigration Bill back in 2003. It did not have any of the exceptions and it was not as constrained as the Bill before the House today. He did not just support the measure; he proposed the measure. He was a Minister in the Department for Constitutional Affairs. I am not sure whether he has forgotten about that, but I am afraid that the Opposition have zero credibility in opposing a more targeted measure that they proposed before.

The Bill will remove Cart for the whole of the UK, but only in respect of reserved matters. I hope that all hon. Members will agree that we must have consistency in routes of appeal to preserve a coherent and efficient immigration policy and indeed the integrity of the UK’s borders.

[Joanna Cherry]

The Lord Chancellor will be aware—I am sure that this will be covered in other speeches—that the evidential basis for this law change in England has been questioned, but the Law Society of Scotland has said that there is no evidence of any such problem in Scotland. On the contrary, there is good recent evidence of a Cart—or Eba judicial review as we call them in Scotland—in which the first tier tribunal and the upper tier judge misunderstood the petitioners’ evidence, and the Appeal Court intervened to reduce the upper tribunal’s decision, refusing it permission to appeal. Does he accept that there is absolutely no evidential basis, north or south of the border, for the need for these kind of procedures to be withdrawn, and can he tell me why he is forcing a restriction on the Scottish legal system for which there is no evidential basis?

[Dominic Raab]

In fairness, I think have presented the evidential basis: 750 cases each year and barely a 3% success rate. Of course, the integrity of the tribunal needs to be protected. There are safeguards and exceptions. The Bill is not nearly as broad as the Bill tabled by the right hon. Member for Tottenham back in 2003. This is the right way for the House to proceed.

[Joanna Cherry]

Will the Secretary of State give way?

[Dominic Raab]

I will make some progress; I have given way to the hon. and learned Lady twice.

The Bill will reform quashing orders so that we can strike a better balance between the essential judicial accountability over the Executive and the ability of an elected Government to deliver their mandate in a lawful but orderly way. Let me give one example: the case of Her Majesty’s Treasury v. Ahmed back in 2010. In that case, the then Government acted on best information, including intelligence, and froze the funds of three brothers suspected of being al-Qaeda terrorists. They did so under the auspices of two Orders in Council, which were made in 2006 under the powers of the United Nations Act 1946. The Supreme Court considered whether the orders were ultra vires of that Act and therefore invalid.

The 1946 Act gave the Government the power to give effect to UN Security Council resolutions on threats posed by international terrorism. However, the Supreme Court decided that the orders went beyond what was necessary and expedient for implementing the relevant resolution, because the orders provided that a person’s assets could be frozen on the basis of a “reasonable suspicion” of involvement in terrorism, rather than a higher standard of evidential proof that the court deemed that the law required. The court quashed the orders immediately, irrespective of the ability of the Government to reassess or revise the order, because it concluded that it did not have the power to suspend the effect of the quashing order. That required Parliament to rush through new legislation to protect the public by preventing suspected terrorists from accessing those funds, because Ministers no longer had the powers that they believed they could exercise under the relevant legislation.

This Bill simply remedies that measure of inflexibility by giving the judiciary the power to issue a suspended—or, indeed, a prospective—quashing order, allowing the Government a reasonable period of time to review the orders and/or the legislation itself. If that had been available in the Ahmed case, it could have prevented considerable disruption and potential risk, while safe- guarding the judiciary’s vital scrutiny of the Executive in such an important area of national security.

[Sir William Cash (Stone) (Con)]

The European Union (Withdrawal Agreement) Act 2020, as originally passed, included provision for the courts to be able to quash Acts of Parliament. That is rather a serious matter, to say the very least. Does my right hon. Friend agree that that is very unwise—particularly having regard to the Factortame case, when we voluntarily agreed that we would allow the courts to do that—and that now that we are out, we certainly would not want that to happen again?

[Dominic Raab]

My hon. Friend makes a powerful argument. I have not heard the Factortame case cited in this House for some time—to the relief of some.

Of course, there are many other contexts beyond counter-terrorism—from infrastructure projects to health and safety regulation—where the use of a suspended or prospective quashing order would lead to a better outcome, allowing both essential judicial accountability and good governance at the same time; those two aspects can and should go hand in hand. Dare I say it, these reforms may have the welcome effect of making our system just a little less adversarial by giving the Government and this House the opportunity to respond swiftly but in a considered manner, rather than effectively being tripped up—sometimes at great cost to the taxpayer and at other times at potential risk to the public.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Perhaps the Secretary of State and Lord Chancellor could help me on two matters. When these matters of suspended quashing orders are being worked out, will he ensure that no litigant who has succeeded and has suffered tangible loss is left without an effective remedy? That will be important, outwith any other considerations that might very properly be taken into account. I also gently say to him that he has clearly been absent from justice debates for a little while—and we welcome him back—or he would surely have known that my hon. Friend the Member for Stone (Sir William Cash) never misses an opportunity to raise Factortame when we talk about topics of this kind; he has managed to do so in this debate as well.

[Dominic Raab]

I can give my hon. Friend, who chairs the Justice Committee, the reassurance that he is looking for. If he looks at clause 1(8)(c) and (d), he will see that

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and those

“who have relied on the impugned act”

are material considerations for the court to consider.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

What would the Secretary of State say to victims of rape, some of whom have been waiting up to four years to get justice, when they rightly ask why the Government are prioritising judicial review reforms in the midst of a pandemic, rather than dealing with those abhorrent crimes?

[Dominic Raab]

The hon. Gentleman makes a fair challenge. However, he should ignore the pleadings from those on his Front Bench and support this Bill, because, overall, as well as dealing with judicial review, with the reform agenda that we are putting through the criminal courts we will free up a substantial number of Crown court days a year—I think it is 400. That will mean, on top of the other efforts such as the Nightingale courts, the super-court in Manchester and the virtual courtrooms, that we will be able to free up further court time and space. He raised a very good point but it is a reason—an argument—for supporting the Bill.

I turn next to courts and tribunals, which, as the hon. Member for Slough (Mr Dhesi) fairly says, have been severely impacted by the covid-19 pandemic. Let me take this opportunity to pay tribute to the judges, coroners, clerks, barristers and solicitors who have worked so hard to keep the wheels of justice turning. We should take pride in the fact that, looking right around the world, our jurisdiction was the first to restart jury trials after the pandemic began.

On the point that the hon. Gentleman made, we also recognise the backlog created by the pandemic. Let me reassure him, and the House, that we are taking every measure and straining every sinew to bear down on it as swiftly as possible. As well as the super-court and the Nightingale courts, we have the new technology that will help us to reduce the backlog and pioneer other innovative procedural reforms. We are using technology to deliver better services for victims, and indeed for users and citizens, allowing vulnerable victims to pre-record their cross-examination evidence rather than have to go through the distress of giving it in court in front of an assailant. Likewise, the Domestic Abuse Act 2021, once it is commenced, will mean that all complainants of domestic abuse can give evidence during a trial from outside the court through a virtual link.

This is not confined to the criminal courts. In the civil courts, our reforms to probate mean that grieving relatives can make their applications from their own home, while the digitisation of the divorce service has reduced the time for users to complete the process by almost three months compared with the paper track. Now, as a result of this Bill, we will ensure that we are using technology to build the system around the people who actually use it, who invariably want to see justice done more swiftly and more conveniently for them, given their busy schedules, whether in work or life.

The Bill makes provision for a completely new online procedure rules committee for civil and family proceedings and tribunals. That committee will create new rules for online services consistent across all the jurisdictions. Let me give just one illustration of how the average citizen will benefit. For a self-employed person, say a plumber or a carpenter, chasing an unpaid invoice, the rules will enable these online services to be straightforward and easy to follow, dispensing swifter justice more convenient for the average working citizen as a user of the justice system. I think we should be pushing and pressing in that direction. The Bill will transfer responsibility for employment tribunal rules from the Business Secretary to the tribunal procedure committee. It will also make the committee responsible for rules in the employment appeals tribunal. While this is a rather technical change, transferring these powers to an independent judge-led committee will align the employment tribunals more closely with the wider tribunal system and promote broader consistency and efficiency.

In the criminal courts, the Bill will introduce measures that use new technology to streamline procedures to strip out unnecessary in-person hearings and create more efficient processes for allocation of cases in the Crown court and the magistrates court. That will enable swifter resolution of low-level offences such as travelling on a train without a ticket or fishing without a licensed rod without the need for the time and expense of attending court, allowing people to do it online instead, delivering a common-sense approach to our justice system.

The Bill will streamline procedures in the use of remote hearings in coroners’ courts, which will speed up and simplify the inquest process and reduce the distress for bereaved families.

[Vicky Foxcroft (Lewisham, Deptford) (Lab)]

When my constituents Andy and Amanda lost their daughter Colette, who was in the care of the state, they had an awful experience with the coroner service and had to crowdfund money for their legal representation. They just wanted lessons to be learned after their daughter’s awful death. Surely they should have the right to the same legal representation as the state, and providing publicly funded legal representation would improve this. What would the Minister say to that?

[Dominic Raab]

We have addressed that issue in response to the report that the Select Committee put out. Our position has not changed. What I would say to the hon. Lady is that I am mindful of the ordeal her constituents went through. One reason we are taking forward these procedures is to reduce that anguish and stress and to ensure that the coroners’ courts in the process deliver a better outcome for the bereaved and others relying on that service.

[Bob Seely (Isle of Wight) (Con)]

I am delighted that my right hon. Friend is making this speech, and we support so much of the Bill. On principle, does he accept that DNA sampling for people buried at sea would speed things up and save time for police and coroners when body parts wash up anywhere on the UK coastline, because they could quickly identify where those body parts come from?

[Dominic Raab]

My hon. Friend has raised that point with me privately, and he has now raised it on the Floor of the House. I am committed to looking at it and getting back to him. I understand the point, which he has raised in his usual tenacious but clear way.

Finally, the Bill will pave the way for a new state-of-the-art combined courthouse in the City of London. That court will provide an additional 10 courtrooms, predominantly to hear economic crime cases, including white-collar crime, such as fraud, and high-value business and property cases. That will be a real boost to the capital and to our vision of global Britain as a centre for investment, dispute resolution and doing business with integrity around the world. Court users will benefit directly by having access to more modern facilities, including lifts, wide corridors and a range of other measures, making it more accessible for the disabled. The City courtroom will have enhanced custodial facilities, increasing its ability to hear more cases with the most serious type of defendants.

[Marsha De Cordova (Battersea) (Lab)]

It is great that the Justice Secretary is talking about ensuring that this new court building will be fully accessible and inclusive, but going back to the point about digitisation, how will he ensure that everybody who needs online access will be able to access things online and that no communities will be left behind as a result of this Bill?

[Dominic Raab]

The hon. Lady is right to raise that concern. All of this work to modernise court and tribunal proceedings, which is necessary in its own right, will help to bring down the backlog of cases created by the pandemic. Physical hearings will always be available for those who need and want to use them, so that those who are uncomfortable or cannot access the digital and online applications will not be prejudiced. I hope that gives her the reassurance she needs to support this Bill on Second Reading.

[Andy Carter (Warrington South) (Con)]

I agree with the comments the Secretary of State made earlier about the work of the judiciary in bringing down delays. In particular, I put on record my thanks to the magistrates who work in our courts around the UK. Does he agree that one route we could choose to reduce the number of delays in magistrates courts is to increase the sentencing powers for magistrates? Perhaps he can say a little more on that point.

[Dominic Raab]

I thank my hon. Friend for the work he and the magistrates have done. They hear 85% of criminal cases. The backlog in the magistrates court is already coming down. We thank the magistrates for the incredible work they are doing. He has lobbied me on this point, and in the context of the backlog, it is something I am looking at very carefully.

In sum, the Bill will reform the immigration appeals system, protecting it from litigation attrition. It gives judges greater flexibility in judicial review to hold the Executive to account without unnecessary disruption to the essential business of Government. Above all, the Bill will drive innovation across our courts to deliver a better service for the average citizen in this country. I commend the Bill to the House.