Judicial Review and Courts Bill (First sitting)

James Cartlidge Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Chair]

Thank you. To ask the final question, I call the Minister.

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

Q Thank you, Sir Mark; it is a pleasure to serve under your chairmanship. I thank our three very distinguished guests for their excellent contributions and some very interesting points. I will finish with one point on Cart JR. I think Professor Varuhas made the point about the upper tribunal effectively being a superior court. On Second Reading, my hon. Friend the Member for Newbury (Laura Farris), who has acted on Cart JR cases as a barrister, made this point about consistency: in very few other areas of law do we have what we call three bites of the cherry. Very briefly, does it not seem strange that no one arguing to maintain Cart JR seems to be arguing that all the other areas where there are only two bites of the cherry should now have three? Would that not be the logical conclusion of that position?

[The Chair]

I think we have time for only one response, so who should take it?

[James Cartlidge]

It probably has to be Professor Varuhas.

Professor Varuhas: I reiterate what I said before in response to your question. The phrase on the number of bites of the cherry comes from a speech given by Lord Carnwath, who raised this point and considered that it was disproportionate that an applicant in this context should have so many bites of the cherry, given that the upper tribunal has the status of the High Court. It is a judicial body, independent of Government, that is staffed by senior members of the judiciary with specialist expertise. Given the credentials of the institution, it seems disproportionate to allow a further three or four bites of the cherry after an application has proceeded through those stages and been found not to have merit. I think the point is well made.

I will abuse my position to add one further point on the remedies provision. Professor Ekins reminded me that I meant to say that one discretionary factor that should be added under subsection (8) is the public interest, which is a curious omission because the public interest can be seriously prejudiced by decisions on remedies in the interests of the economy, national security and so on. That should be factored into the remedies.

Although I went slightly off topic at the end, I certainly agree—

[The Chair]

Order. I am afraid that brings us to the end of our time. I thank our witnesses on behalf of the Committee for their evidence today.

Examination of Witnesses

Professor David Feldman and Dr Jonathan Morgan gave evidence.

--- Later in debate ---

[Marco Longhi]

Thank you. I am glad that you referred to the words “less extreme” in your commentary.

Professor Feldman: I agree with what Dr Morgan said.

[James Cartlidge]

Q I was very struck by the point from Professor Feldman about resource and proportionality in relation to the Cart judicial reviews. He made the point about the 3.4% success rate being very low compared with estimates of success. I am not sure that that is necessarily definitive. You suggested 50% for what we might call other JRs. The average number of judge days used on these cases is something like 180 days of what is, after all, the High Court judge’s time, so your point on proportionality is important in terms of resource—albeit the legal considerations are very important as well. Currently, we as a Government, who are accountable for resources, are faced with this covid-related backlog, particularly in the Crown court but in other parts of the courts as well. Given the average number of judge days, would you agree that currently the resource issue is even more important to take into account?

Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure.

The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one.

Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading:

“Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.]

In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation.

That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.

[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.