James Cartlidge
Main Page: James Cartlidge (Conservative - South Suffolk)Judicial Review and Courts Bill (Fifth sitting)
James Cartlidge ExcerptsTuesday 9th November 2021
(2 years, 5 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—
“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—
(i) bad faith, or
(ii) fundamental breach of the principles of natural justice.”
This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.
Amendment 44, in clause 2, page 4, line 8, at end insert—
“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002;
an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom;
a party is ‘not of full age or capacity’ if that party is—
(a) a child, or
(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided)
an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;
‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;
‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;
‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”
This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is a great pleasure to serve under your chairmanship, Mr Rosindell. I wish everyone a good morning and look forward to another thorough day’s examination of this important Bill.
Amendments 43 and 44 seek to reduce the scope of the ouster clause by introducing numerous exemptions. Clause 2 is carefully constructed and consistent, and identifies the kinds of errors the court could make and deals with each separately. The upper tribunal will not be reviewable on errors of law but will be where it has made a true jurisdictional error or where there is evidence of bad faith or a fundamental breach of the principles of natural justice. That is so we can deal with the inefficiency in the current system while providing adequate safeguards.
The exemptions outlined in the amendment would completely undermine the Government’s objective of tackling those inefficiencies, as a large number of cases would continue to proceed to the High Court on grounds of error of law without any good reason. I understand that some of the circumstances outlined in the amendment are particularly difficult for the claimant. However, we must trust the upper tribunal to take appropriate and proper decisions on all permission-to-appeal applications. Where there are particular sensitivities, we can be confident that the upper tribunal will have considered those in reaching its decision.
The very low percentage of Cart judicial reviews that actually result in a successful outcome for the claimant—as we have discussed, the figure is about 3.4%—illustrates precisely that point. There is no good reason to treat the sorts of cases that come before the upper tribunal—the majority of which are immigration cases—differently from any other sort of dispute that comes before our courts and tribunals by granting them a third bite at the permission-to-appeal cherry, as we have famously described it, which is what the Cart JR system currently does. The amendments would undermine the consistency of the treatment of appeal decisions by the upper tribunal, making it the final court in some cases but not others, simply because of certain factors relating to the claimant rather than to the nature of the error concerned. Our approach is consistent and justified, and properly empowers the upper tribunal to get on with its important business.
Amendment 42 aims to widen the exception to the ouster clause, which relates to bad faith and fundamental breach of natural justice. It proposes including decisions made by the first-tier tribunal as well as the decision of the upper tribunal. I consider the amendment unnecessary. I am sure hon. Members will agree that judges of the upper tribunal are entirely capable of identifying the sort of blatant and serious errors that constitute bad faith or a fundamental breach of natural justice.
The upper tribunal can be trusted to uphold the rule of law, and the drafting in the Bill sets out with sufficient clarity the exceptional conditions in which the upper tribunal should be subject to judicial review—namely, where it has breached the fundamental principles of natural justice or acted in bad faith. In any case, one would imagine that the upper tribunal knowingly upholding bad faith on the part of the first-tier tribunal would act in breach of the fundamental principles of natural justice. Therefore, including a further provision in the Bill outlining a situation that, in my view, is extremely unlikely to occur, is unnecessary. I urge the hon. Member for Hammersmith to withdraw the amendment.
Andy Slaughter (Hammersmith) (Lab)
It is a pleasure to see you in the Chair again, Mr Rosindell, for another sitting to consider this important Bill. I will respond briefly.
The Minister correctly said that the aim of the amendments is to reduce the scope of the ouster clause. That is exactly right, because we do not believe there are adequate safeguards. Without giving away the plot, we will come shortly to the clause stand part debate and our preferred option is to leave the clause out altogether. The amendments are our attempt to say that if the ouster clause were appropriate in the new circumstances, which we do not concede, it should not have such limited exemptions.
The Minister said that the amendment would defeat the Government’s purpose by increasing the number of cases that would still be subject to judicial review. It is my submission that that is not the right way to look at it. It is the justice of the case and the consequences for claimants that we should be looking at. To repeat what I said last Thursday, those consequences are often matters of life and death and severe. In addition, the use of judicial review in Cart cases is already heavily constrained. We have focused on the relatively small amount of money that Cart judicial reviews cost—relative in terms of overall judicial budgets—this would be a part of that sum.
The Government should not dismiss this issue. At the very least, they should think about the extent of the ouster clause. That is the purpose of this debate and I do not believe they have thought sufficiently about it. We are, however, coming to the clause stand part debate, in which members of the Committee will be able to express ourselves rather more clearly and fully. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
James Cartlidge
Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.
Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.
The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.
Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that
“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]
He agreed that it is time to end this type of review because of its inefficiencies.
The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said 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.”
We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
Does the Minister think it is a little strange that while Opposition Members argue for those immigration cases to maintain having three bites at the cherry, they do not make the same argument for other cases with potentially higher success rate?
James Cartlidge
I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.
Tom Hunt (Ipswich) (Con)
Given that the Opposition have spent so much time opposing all the steps the Government have taken to fit capacity into the system, does the Minister agree that there is a certain irony that they had planned to hold an Opposition day debate yesterday on how to sort out the court backlog?
James Cartlidge
My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.
Anne McLaughlin (Glasgow North East) (SNP)
If that is the case, and if the Minister is so concerned about the court backlog, does that mean that he will not support the Nationality and Borders Bill, which attempts to criminalise asylum seekers simply for coming to this country because they could not find safe and legal routes, at an estimated cost of an extra £400,000 per year, clogging up the court system even further?
James Cartlidge
It is a fair point, but the hon. Lady and my colleagues may be interested to know another statistic that we have discovered: the average time that these cases take from coming to court to reaching a conclusion is 88 days. That means that hundreds of cases are taking three months to be heard in the High Court. On that basis, we would not bring in new measures to toughen up sentencing on, for example, serious sexual offenders. If we did that, more people would potentially end up being found guilty of those crimes and going to prison for longer, which costs. That is precisely why we are taking measures to free up capacity. For example, in a later part of the Bill we will be remitting more cases from the Crown court to the magistrates court, because it is in the Crown court that those serious crimes will be heard.
Anne McLaughlin
I thank the Minister for that second bite. I know he was not deliberately conflating serious sexual offenders with asylum seekers, but I really want to make that distinction. We are talking about people fleeing for their lives from terrible situations, and in the same sentence he compares them to serious sexual offenders. Does he agree that there is no conflation there?
James Cartlidge
Of course. That is not the point I was making. To be absolutely clear, the point I was making is that we still have to deal with serious acts of violence and crime, whatever the crime may take place. If we do that, our actions may put more pressure on the courts, but I think our constituents would support that. Moreover, if someone comes to the tribunal system seeking immigration to this country, they will have two bites at the cherry—to use that phrase again—which is a consistent position.
James Cartlidge
The hon. Lady shakes her head. [Interruption.] She wants a third bite of the cherry. Well, I am going to ration them a bit, because there are oral questions soon. An inordinate amount of judicial resource is being used to review decisions of broadly equivalent judges who, importantly, are correct in refusing permission to appeal in the overwhelming majority of cases. However, if we take this away in immigration cases, there are still two bites at the cherry, which is consistent with article 13 of the European convention on human rights.
Anne McLaughlin
I have just served on the Nationality and Borders Bill Committee. I did not get a break between that and this Committee—in fact, last week the two clashed—so I know that what the Minister says is not the case. If asylum seekers arrive here by irregular means—in other words, if they come by boat because they cannot find safe and legal routes—they will not have an opportunity to apply for asylum, because they face offshoring and prosecutions. They will end up in the criminal court system before they even have an opportunity to go through the system that the Minister is discussing.
James Cartlidge
Let us be clear and differentiate here. If someone seeks to enter this country illegally, the rule of law and the law of the land apply. We have to deal with them through the courts, as is absolutely right. We think that judicial review is, in effect, an exceptional privilege used in immigration and asylum cases. Some 95% of these are immigration cases, and there are some other types of cases using Cart JR. We think that this is excessive. What we do not think is excessive to use the courts to use the rule of law and all the things that apply in a democracy to ensure that we have effective border controls which, after all, our constituents support. That means that we have the rule of law both at home and for people trying to emigrate to this country, either legally or illegally. The latter is something where our constituents feel particularly strongly that we must be strong in sending a signal that this country is not a light touch for people seeking to enter illegally, even if eventually their asylum claim is found to be legitimate. For those cases, we are generous, and we have shown that in what we have done in the Afghan settlement scheme.
Turning to the method by which are trying to ensure that there is a more proportionate use of resources, the Government understand that there are concerns about the use of these clauses, but we believe that clause 2 as drafted is clear in its intent. Indeed, the independent review of administrative law acknowledged that the use of an ouster clause to deal with a specific issue could be justified. Its nuanced approach emphasised that if there was sufficient justification, and the ouster clause was not too broad or general in scope, it would not undermine the rule of law.
As drafted, clause 2 addresses the previous concerns of the courts in six ways. First, as shown by proposed new section 11A(4)(a), the ouster clause applies only where there is a valid application for permission to appeal from the first-tier tribunal. This is not an extensive ousting of the upper tribunal—it removes only a specific route of review. Secondly, turning to new section 11A(4)(b), the ouster clause does not apply where there is true jurisdictional error. If it were the case that an invalid application was made or there was an application on a criminal law matter, and the court decided to adjudicate it, that would be outside its jurisdiction and open to judicial review. If the upper tribunal was not properly constituted—for instance, if a disqualified judge presided over a hearing—such a hearing would be outside the jurisdiction of the court. The ouster applies where the upper tribunal is functioning as normal, with proper composition of the panel.
Thirdly, two additional exceptions have been added to the clause, to further improve the “safety valve” aspect of the ouster clause. Once again, the Government are not trying to completely oust the upper tribunal’s jurisdiction; rather, they are concerned with ousting the ability to review errors of fact and law made by the upper tribunal. This does not include instances where the upper tribunal has acted in bad faith, or where there has been a fundamental breach of the principles of natural justice, such as if the court decided to hear only one side of the case. These issues concern an abuse of the powers of the tribunal, and we do not see merit in ousting such abuses from judicial review.
Fourthly, the clause is limited only to courts. The wording of proposed new section 11A(2) is explicit that the measure involves removing the jurisdiction of courts from other courts—not executive bodies. The impression given by some of the commentary on the Bill since its publication has been that the clause is being used to remove executive power in general from the court’s oversight, but that is not the case. It is stopping one court reviewing another court of broadly equal standing.
Fifthly, as a notable point and in defence of the integrity of the Union, the ouster clause does not apply to challenges of decisions from the first-tier tribunal for which jurisdiction was or could have been granted by an Act of the Scottish Parliament or of the Northern Ireland Assembly. The clause is clear and explicit. The Government hope that the effect of drafting the above exceptions, and explicitly stating what is and is not covered by the ouster clause, will be to demonstrate that it is possible to develop such a clause that will be upheld by the courts and that it may well improve practice in future circumstances where such clauses are considered. This is a well-considered ouster clause that is designed to meet a clear policy objective and includes appropriate safety valves to prevent injustice. I hope that the Committee will support clause 2.
Andy Slaughter
The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.
A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.
Andy Slaughter
It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.
James Cartlidge
It is a pleasure to wind up this stand part debate, which has been passionate. We have had some excellent speeches and interventions from both sides, and I will refer briefly to a few of them. The hon. Member for Lewisham East said that we are talking about human beings. We have heard cases that all of us would be sympathetic to, but that is not the point. Those using all the other parts of the legal system, where it is absolutely standard to have “two bites at the cherry”, are human beings too.
If there is a planning case, for example, where some houses are approved and your parish disagrees, it can seek judicial review through the High Court. If that is denied, it can potentially—although it is unlikely—try the Court of Appeal. That is it: two bites. That is the standard procedure, and it will still apply for cases of immigration and asylum, including all the people we have heard. As to what would happen to those who were successful, that is where we have to make a judgment on proportionality and accept that there would potentially be some cases that would have been found to be unlawful. However, as my hon. Friend the Member for Ipswich said in an excellent speech, where do you draw the line?
The Labour Front-Bench spokesman, the hon. Member for Hammersmith, quoted Professor Feldman in aid, but it was Professor Feldman himself who admitted that ultimately when we look at it—he took a very balanced view—this was a disproportionate use of resource, where 96.6% of cases are proving to be unsuccessful. When the rate of failure is so high, I wonder why legal representatives are advising their clients to go down that path. It calls into question whether it is, in effect, another route of appeal, and a chance to extend the case further, because, as I said earlier, it can be in the system for up to three months.
Andy Slaughter
I think the Minister makes my point for me. I deliberately quoted Professor Feldman because, yes, he did see some merit in the proposals of Cart, but he went on to warn about the wider dangers—the series of quotes that I gave was on this point, which I am sure the Minister will address—of opening the door to a much wider and further restriction through the use of ouster in future.
On the cherry point, the argument I put forward was that an unlawful decision of the first-tier tribunal is not being picked up by the upper tribunal—hence the illegality and hence the deportation, or whatever it is, happening contrary to the law—and is being picked up through Cart. It is the first bite at the cherry. It is correcting an error at first instance, which has not been picked up by the upper tribunal.
James Cartlidge
The hon. Gentleman has been asked repeatedly whether he thinks, on that basis, that we should extend the right to three bites at the cherry to all other areas of law. What would be the cost? How much more resource would that take up? If he does not think that, he must be saying to all our constituents that immigration and asylum are exceptional, and overwhelmingly that immigration cases should have that additional right. I think our constituents would disagree. It is right for the Government to exercise judgment on matters of the use of resources.
Sir John Hayes
This is precisely the point I made when I intervened on the hon. Member for Glasgow North East. What are the parameters? What are the limits? Where is the line drawn? We have heard none of that from any of the critics of the Bill and the Government are simply trying to re-establish the parameters that prevailed for most of time, which give the system integrity and substance, and which make it not only workable but defensible.
James Cartlidge
I am grateful to my right hon. Friend. I want to correct one point about what happened under previous Labour Governments. It is quite extraordinary that the hon. Member for Hammersmith talks about this tightly drafted ouster clause somehow being a precursor to further ouster clauses that could go much wider. As I said on Second Reading, the Minister responsible for Labour’s Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the right hon. Member for Tottenham (Mr Lammy), admitted in this sort of Committee sitting that they were trying to bring in the mother of all ouster clauses, so widely was it drafted. To be clear, it was not the same system. It was not the upper tribunal. There was a single-tier immigration and asylum tribunal. Judicial review was in that sense the second tier. They were going to remove it even where they did not have the upper tribunal in place. That is an extraordinary situation and it underlines that what we are restoring is a situation wholly consistent with the European convention on human rights.
James Cartlidge
I will take one more intervention from the Opposition, and then another from my right hon. Friend.
Andy Slaughter
I am not going to speak for my right hon. Friend the Member for Tottenham, who is better able to speak for himself. Let us imagine that the Minister was correct, and that that was an error. Why have the Government not learned from that? Why are they coming here to make the same mistake again, in the same terms?
James Cartlidge
The hon. Gentleman does not want to answer, because he knows he cannot defend it. He cannot answer the point. If he thinks it right that in order to find these few cases of legal merit, someone should have three bites at the cherry, why does he not apply that to all other areas of law? He either thinks it should be applied, in which case, clearly, we would be gumming up the courts with a much greater burden of pressure, which would make clearing the backlog completely impossible; or he thinks that immigration and asylum is an exception. You cannot have it both ways.
James Cartlidge
I am not giving way to the hon. Gentleman again. I give way to my right hon. Friend.
Sir John Hayes
I want to emphasise what the Minister is saying. He is going much further than I did. I was giving the Opposition too much credit—saying that we simply wanted to return to a system that prevailed before 2011. The Minister has told us, revealingly, that the Labour Government wanted to restrict the system further. They wanted to do more than this Bill does. Frankly, on that basis, the Opposition case seems to fall at the first hurdle.
James Cartlidge
My right hon. Friend is absolutely right. Let us be clear: the Labour party can take up as many positions as they want on ouster clauses, supporting them when in government, opposing them now, but a High Court judge cannot sit and listen to two cases at the same time. That is a fact. The question of resource is fundamental.
I want to return to the point about backlog. My hon. Friend the Member for Ipswich made an absolutely correct point. Of course this matters in the context of backlog—it is absolutely absurd to suggest otherwise. I have asked the senior judiciary about the backlog and the pressure points for capacity. Of course, there is a pressure point in terms of judicial resource, when we look at the limited number of very experienced High Court judges and so on. It is by definition a limited resource. I asked where we will find, for example, the judges to take murder cases. They will come from High Court judges. It may not be a judge that sits in the administrative court on this sort of appeal—it may not be someone who sits on a Cart JR—but it could be. The resource has to come from somewhere and more pressure on the courts, with hundreds of cases a year for something where the chance of success is so low, completely undermines our ability to deal with other serious cases. I am bound to point out that the Opposition voted on Second Reading against the entire Bill, which includes many other measures that reduce the pressure on the Crown court, as we shall hear later.
It is absolutely outrageous for the hon. Member for Hammersmith to bring in rape. It is totally indefensible for him to do so. He knows full well that in the wake of these terrible murders, all the focus of the Government and people across the country is on the great anxiety felt by women and girls about what is happening. We all share that. We all sympathise with the families who were hit by those tragedies. That is why we have measures in place across the board. We have published the End-to-End Rape Review precisely to increase the number of cases that the police choose to take forward, that the Crown Prosecution Service chooses to prosecute and which end up in court. That is the whole point of the review.
The key point is: a rape case is indictable. Where will it be heard? In the Crown court. In the Bill we have clause 10, which moves more cases from the Crown court to the magistrates so that we can free up 400 sitting days. That is a huge amount: 180 plus 400 is 580 sitting days. That is a lot of resource, so it does matter. I am sorry, but it is wholly unacceptable to conflate the two points.
Our constituents understand the basic point, as mentioned by my hon. Friend the Member for Ipswich, that gumming up the courts with immigration cases with very low chances of success using a right not available to most of our other constituents through other forms of justice will have an impact on the backlog. They know that the right thing to do is to remove this route of judicial review. That is why I urge my colleagues, with the huge amount of common sense that exists under my merry band of Committee members, to vote for clause 2, so that we streamline justice in a way that is fair and equitable for all people in the justice system. The clause would ensure that we have proportionate use of resource so that we can bear down on the backlog. I urge colleagues to support clause 2.
Question put, That the clause stand part of the Bill.