Judicial Review and Courts Bill

James Cartlidge Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[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.

--- Later in debate ---

[James Cartlidge]

They pulled it because they were going to get hammered in the House of Lords.

On Cart JR, the hon. Member for Bath (Wera Hobhouse) seemed to imply that somehow an ouster clause is fundamentally against the interests of holding Government to account. Every day that this place is sitting, hon. and right hon. Members will stand up and speak on behalf of their constituents on serious matters. I once spoke in a debate on the Adjournment—the one where our former colleague spoke many times. I spoke on a very serious case in my constituency of a very vulnerable man who had had a stroke and had, I felt, been let down by a company in my constituency. I was able to name that company in this House and hold it to account, as we all do. On what legal basis was I able to do that? It was article 9 of the Bill of Rights 1689—effectively a very ancient ouster clause that ensures that proceedings in this place are not subject to the courts, as you well know, Madam Deputy Speaker.

We all benefit from an ouster clause, and it helps us to hold the Government to account.

[Joanna Cherry]

It was generously suggested earlier that the Minister might respond to my query about the impact of clause 2 on the treaty of Union and the Scotland Act 1998. It is a slightly complicated point, but if I write to him about it, will he get back to me, because it is a really important point? If the Law Society of Scotland is right, the Bill needs a legislative consent motion.

[James Cartlidge]

I have to be honest with the hon. and learned Lady: it is very kind of her to ask me to write to her, because that is what I would have suggested in my answer anyway. Speaking to her earlier question, we do not think a legislative consent motion is needed, because the Cart judicial review only covers reserved matters.

Coming quickly on to the online procedures, these are incredibly important. I know from my own business—we started doing mortgages online in 2005—that those procedures we are used to doing face-to-face can be conducted online, provided there is good software and safeguards and support in place. I refer to the speech of my hon. Friend the Member for Crewe and Nantwich (Dr Mullan). He is a brilliant MP. He is my parents’ MP, and they tell me he is a fantastic campaigner. He asked, as did the hon. Member for Battersea (Marsha De Cordova), who was here earlier, what help would be provided for vulnerable users. I can assure my hon. Friend and the House that we take that incredibly seriously. With all these procedures that will be taking place online, or at least where there is an option to go online, there will be strong support and safeguards in place, in particular to protect vulnerable users. In those key choices of, for example, entering an early plea online, there would always be the option for the person concerned to ask for their case to be heard in the flesh in the traditional way.

I have a few final points. We had a number of other excellent speeches. My hon. Friend the Member for Aylesbury (Rob Butler) served as a magistrate before coming to this place. We are all proud of the excellent work of our voluntary judiciary. A number of my hon. Friends, including my Parliamentary Private Secretary, my hon. Friend the Member for Hertford and Stortford (Julie Marson), have been or are magistrates, as I assume have Opposition Members. I would love to meet them to talk about what more we can do to support magistrates. My hon. Friend the Member for Aylesbury praised the very important measures in the Bill, not least the measure that will ensure we can remit cases from the Crown court to the magistrates court. That is so important because it frees up time in the Crown court to hear those important criminal cases that are backlogged—the rapes, the murders and so on.

It is a great honour to be asked to become a Minister in the Department responsible for the world’s greatest justice system. It is so great is because of its fundamental core of the rule of law and the independence of the judiciary. If we are to sustain that system not just beyond covid recovery, but for the long term, we need to keep modernising our courts and to digitise and use technology as much as possible, while balancing that out with safeguards for the vulnerable. It is quite simple: with this Bill we can build back better and beat the backlog. I commend the Bill to the House.

Question put, That the Bill be now read a Second time.