Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Cabinet Office
Judicial Review and Courts Bill
Joanna Cherry ExcerptsTuesday 26th October 2021
(3 years, 1 month ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
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.
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 A claimant whose leave to remain was revoked because of his dishonesty challenged that decision in the High Court.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“it appears that permission was granted on grounds which had no merit, ought to have been withdrawn by their proponent, and do not seem to have been regarded as giving a reasonable prospect of success even in the granting of permission.”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.”
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.
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.
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?
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?
Sir Robert Neill (Bromley and Chislehurst) (Con)
It is a pleasure to participate in the debate and to follow the two Front Benchers. I welcome the Lord Chancellor and Secretary of State to the Treasury Bench, and thank him for the very generous and accurate tribute he paid to my right hon. and learned Friend the Member for South Swindon (Robert Buckland), whose conduct in office was of the very highest. I also welcome the hon. Member for Hammersmith (Andy Slaughter) to the Opposition Front Bench. He is a great loss to the Justice Committee, but very much the Opposition Front Bench’s gain. I look forward to seeing him in his reincarnated capacity. This is proof, I am glad to see, that the Labour party believes in recycling, and doing it in a good way, in this instance. If it is any help, I was recycled by David Cameron once—it happens to all the best, I promise. I am delighted to see the hon. Gentleman there.
This is an important Bill and, in fairness, a measured and tightly focused one. One might not have thought that from some of the things we have heard, but that is the reality. Again, that is in no little measure due to the focus of my right hon. and learned Friend the Member for South Swindon, the principal author of the Bill. I welcome the fact that he did that, and the fact that the Lord Chancellor has adopted the same approach to the Bill.
There were a great deal of noises off around what might or might not happen on judicial review, and I am glad that the course was sensibly adopted of having an independent review panel, chaired by an eminent Queen’s Counsel, the noble Lord, Lord Faulks, who is a distinguished Member of the other House and who, as I think everyone conceded, had approached his duties as a Justice Minister with exemplary fairness and impartiality, was respected by both sides, and had many years of practice in the field. He led a panel of experts who were also distinguished in the field, and they produced a measured report, for which the whole House should thank them.
That report was a great public service, and it is right that the Government have essentially built on the recommendations that the panel made, and the fact that the panel did not regard the judicial review as a major problem, but suggested sensible ways forward, is not something to be held against them. That seems to me exactly what one can expect if people follow the evidence, which is precisely what the panel did and what the Bill also does.
It is important to recognise that judicial review is an important factor in our constitutional arrangements. When I started as a law student in the mid-’70s, judicial review in its modern concept was in its very early stages of development. The late and lamented Professor de Smith was still alive and had produced the first of his two textbooks, but the subject was still largely taught in terms of the old prerogative writs of mandamus, prohibition and certiorari.
A lot has have moved on from then, and we have developed a much more sophisticated and wide-ranging corpus of administrative law. That is not of itself a bad thing, because it reflects the reality that, as I think the late Lord Hailsham of St Marylebone once observed, in the post-war years we have grown a regulatory state. Therefore, the actions of the state and of public bodies—state agencies, local authorities, hospital boards and a raft of others—impinge on many areas of citizens’ lives. That is not necessarily a criticism, but there are greater interactions between the state and its various agencies and the lives of its citizens.
There will be impacts there, and by the nature of the human condition, errors will be made by decision makers. It is perfectly reasonable that we have seen that, but, as has been observed, there has been an exponential growth—I think that was the phrase used—in judicial review. That is worth bearing in mind, because it has sometimes come at the cost of complexity in administrative law.
Lord Justice Haddon-Cave delivered a very useful lecture, the Gresham lecture, in June this year, which reflects wisely on the balances there: the fact that the growth of judicial review is not of itself a bad thing if it gives remedies to those who are wronged, versus the fact that in some areas of the law—the concept of Wednesbury unreasonableness and lawfulness being one—that has led to a degree of complexity. As Professor Richard Ekins of the University of Oxford has observed, that in turn can, in the fields of lawfulness, voidability of decisions and so on, lead to uncertainty. In so far as, according to the Bingham test of the rule of law, we want to see clarity and accessibility of law, we also want wherever possible to see certainty. Nothing can be an absolute in this world, but that is a reasonable objective, and I think the Bill seeks to strike a balance.
What the Bill is not, in fairness, is an assault on judicial review. It is unfair to characterise it as such in every respect; I would not support the Bill if it were, nor do I think that any Conservative would. The truth is that judicial review—the ability of the individual to seek redress against the actions of the state or its agents—is fundamental to the English concept of liberties. In his role as an author, the Secretary of State wrote about these matters before he came to the House, so he recognises that point, as do I and as does the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy).
Judicial review—I say this to the wider public as well as to colleagues—is in the DNA not just of our British constitutional arrangements, but of the Conservative party. The ability to challenge the actions of the state and its agents when they get it wrong is fundamental to our concept of limited government. Supporting judicial review is an entirely Conservative thing for the Government to do and, dare I say it, an entirely British thing, across all the jurisdictions.
Joanna Cherry
As usual, the hon. Member is making a very learned and well-informed speech, but I want to challenge his assertion that the Bill is in line with Bingham rule-of-law principles. The Bingham Centre for the Rule of Law has produced a detailed briefing on the Bill, which says that clauses 1 and 2 are not in keeping with the Bingham principles on the rule of law and should be removed from the Bill. What is the hon. Member’s comment on that?
Sir Robert Neill
I have great respect for the Bingham Centre for the Rule of Law, but I think that it is wrong—it is as simple as that. I have come to the view, as I think the independent panel did, that the two clauses are not in conflict with the rule of law. That is precisely the sort of area in which there can be legitimate debate. I have worked with the Bingham Centre on many occasions, as the hon. and learned Lady knows, but I do not think that its conclusion is justified on the evidence. I think that that point is borne out by referring to the conclusions of the panel in relation to clauses 1 and 2, which I will come to in just a moment.
We all believe in the importance of judicial review. It is regrettable if any side in political debate sees tension between Parliament and the courts, or between the Executive and the courts, as a bad thing. There is always an element of tension in any constitutional relationship. Sometimes a decision may not go in our favour when we are councillors, members of health authorities or Ministers —it happened to me when I was a Minister. We may not like it, but equally we have to respect the decision. I do not see anything in the Bill that changes that fundamental point at all.
I will address the judicial review aspects of the Bill first, although I do not want to forget the other aspects. What we are dealing with is two very limited and specific proposals; that is a dangerous phrase to use under certain circumstances, but I think it works quite well in this regard. In relation to Cart reviews, I must say—with respect to those who seek to uphold Cart—that I understand the point that in a tiny number of instances there might be success, but overwhelmingly they have not proved successful.
I commend to the House the observations of my hon. Friend the Member for Newbury (Laura Farris), who quoted Lord Hope. Of course there are others who argue to the contrary, but with all respect, I think that the views of a senior Law Lord who sat on the case in the Supreme Court and has said “We got it wrong” might carry just a little more weight than those of some other commentators. Certainly the conclusion of Lord Faulks’s panel was
“that the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued”,
so the Government have acted in line with their independent review and in line with the evidence.
I will make an additional point, which has already been posited, but which is important. Many who practise law would say that in truth there is an inherent illogicality in giving one particular class of appeal, as opposed to others, a third bite of the cherry on the merits, when a decision on the merits both of fact and of law has already been taken by the Upper Tribunal, a tribunal of equivalent status and standards to the High Court. That is not an appeal to a superior tribunal; it undercuts the jurisdiction of an equivalent court. With respect, there is no logic to that at all, so it seems to me that it cannot be said that there is anything objectionable in a modest amendment that relates to removing Cart litigation.
In relation to joint enterprise manslaughter, as hon. Members will recall, the Supreme Court used a phrase about the Court of Appeal taking “a wrong turn”. I think that this is an instance in which we can say—and Parliament is entitled to say, with respect—that the Supreme Court in Cart took a wrong turn, and that we are entitled as a matter of public policy, as is conceded to be Parliament’s prerogative in these matters, to reverse it in this limited measure.
May I also deal with the issue in relation to quashing orders? It does not seem to me that it can be objectionable to increase the suite of remedies available to the courts. There can be difficulty when quashing arises, and I do not say that this is a complete solution to it—I shall return to that in a moment—but I think it is worth quoting, in full, the recommendation of the independent panel:
“Accordingly, we recommend that section 31 of the Senior Courts Act 1981 be amended to make it clear that the courts have the power to make suspended quashing orders in appropriate cases. This could be done through the insertion into section 31 of a new subsection (4A), which would read, ‘On an application for judicial review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period.’”
That, broadly, is the scheme which the relevant provisions in the Act follow. They follow the recommendation of the independent review, and I therefore do not think that there are any significant grounds for criticism in that regard.
The one question that I would raise about this—and I posed it in my intervention earlier—relates to ensuring that when we consider the way in which the statutory presumption which underpins this is set out and is then put into force in practice, we do not allow the individual litigant who has suffered tangible loss as a consequence of an impugned decision to be left without a genuine and meaningful remedy. A future declaration of illegality will not of itself recompense a person who has lost a business, lost an opportunity or lost employment, or something of that kind. Provided that this is applied in a way that ensures that that person does not lose out, I do not think that there is anything objectionable here.
There will be some who are parties to litigation and wish to see a change of policy rather than the question of having suffered individual loss, but I should have thought in those cases, the suspended and future quashing orders are perfectly legitimate and proportionate. It is the need to deal with the individual who has lost out against the state that I think we need to safeguard, and I hope the Minister will confirm that that will be done. I am grateful to the Secretary of State for having done so in response to my intervention. That, I think, is the key test.
Another point might be worth bearing in mind. Again, I refer to the helpful paper published by Professor Ekins this morning. This is a path that the Government are not going down, but I should like to know whether there will be some scope for the deferring rather than the suspending of a quashing order. There are circumstances in which that might enable remedies to be applied without some of the difficulties that could arise from uncertainty. I do not say that that is right, but it is worth looking at the paper from Professor Ekins, because it posits some modest amendments that may be worth considering at a later stage in the Bill’s progress. I do no more than float the idea. As it is, however, I see nothing that can be regarded as in any way an assault on judicial review in the first part of the Bill. These are sensible and modest reforms—and reform is not the same as an attack; reform is exactly what we do to keep law up to date.
Let me now turn to the remaining parts of the Bill, starting with criminal procedure. It seems to me that there is nothing wrong with modernising procedure; technology changes, and we all learn. The shadow Secretary of State and I practised in criminal law for much of our careers—as, indeed, did the shadow Minister—and in our time we have all seen procedure change out of all recognition in some respects, often for the better. I think we all agree that serious sexual offences, for example, are handled much better now than they were when we started off in practice at the Bar. In particular, claimants get a far better deal. That is just one example, but I can think of other safeguards that have been built in—the Police and Criminal Evidence Act 1984, and a raft of other measures—and have acted to prevent abuses against defendants in the course of investigations.
Procedure can always be improved, and we ought always to be able to take advantage of technology, as we do with video-recorded evidence and so on. Again, there is nothing objectional about that in principle, and I do not think there is any harm in greater flexibility either. Easy movement between the courts can certainly save time. However, I ask the Government to bear in mind that that needs to come with appropriate safeguards.
My concerns about this have been well set out in the Bar Council’s briefing. For example, when moving from in-person proceedings—which at the moment are often remote proceedings—to a written procedure for certain types of offence, safeguards will be needed as to what precisely the specified offence is going to be. An example that the Justice Committee has highlighted in previous reports is that of a young person who has foolishly committed an act and who enters a guilty plea or accepts a caution, which is recordable. That plea is recorded and then, years down the track, because of the way our criminal records system currently works, they find that it is a serious obstacle to employment or educational opportunities that goes way beyond anything they had contemplated when they entered the guilty plea, perhaps to get it out of the way, at the time.
I am concerned that these categorised offences should not involve anything that is imprisonable, and I also suggest that we should not use the provision for anything that is recordable. I can see that in certain types of offence, such as the non-payment of the television licence fee, this could certainly speed things along, but there needs to be a safeguard for anything that is likely to have an effect on someone’s character, reputation or future life chances. The safeguard is surely that we ensure that an informed decision has been made, which must imply access to legal advice before the decision to enter an online guilty plea is made.
We all know that criminal proceedings are often dynamic and that things come to light as we go along. That can happen with the disclosure of material online as much as in person, and there must be a specific provision to withdraw a guilty plea at an appropriate time if it becomes apparent that an arguable defence could be raised. That seems to be a fair balance, and it needs to be specifically written in, either in the legislation or in regulations. I hope that the Ministers will undertake, at the very least, to reflect that in regulations; that is probably the most constructive way, rather than changing the primary legislation.
We also have to look at one or two anomalies. I note, for example, that in relation to the provision for online procedures, the trigger age relates to someone over the age of 18. However, in clause 4, which deals with
“Guilty plea in writing: extension to proceedings following police charge”,
subsection (3)(b) states that the provision shall apply where
“the accused had attained the age of 16 when charged”.
I do not see the logic in that, so perhaps the Minister can help me when he responds to the debate. What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future. It is not the principle that I object to; I am just concerned that we get those safeguards in place.
While I am on the subject of criminal procedure, I must point out that modernisation is fine and has its place, but what happens tomorrow in the Budget is as important as anything else. I am all for making the best possible use of scant judicial resources and time, but none of the proposals compensates for the proper funding of the courts system. Sadly, we have a legacy of decades of underfunding—under Governments of all colours, let us be blunt. There is no party point to be made here. Under all Governments, the courts system has not been funded to the level it requires, and I hope that the Secretary of State will use his important position within the Government to take forward the ambitious spending bid that his predecessor talked about. If he does that, he will have my support and that of many others on both sides of the House. Investment in justice is investment in the fabric of society, and that is good for us all in the long term. That is a slight digression, but I hope I will be forgiven for raising it in the circumstances.
I now turn to the remaining provisions. Moving tribunals across makes sense. Many people who practise in the tribunals would say that it is about time that tribunals were not regarded as slightly out on a limb and as a bit of a poor relation. A closer alignment will be beneficial for their interoperability. For example I noted during the pandemic that some tribunals’ rule systems, not being the normal Supreme Court rules, lagged behind the courts in adapting to online hearings, so the change can only be beneficial.
I wish the Government had gone further and adopted the recommendations of the Justice Committee’s report on coroners. As far as it goes, the change is well and good but there is a missed opportunity to which we can perhaps return in due course. There is nothing in the Bill to which I object, and I see the good sense in greater flexibility on certain types of hearing, but that is no reason for not being more ambitious in relation to coroners either in this Bill or in future legislation. As the Bill proceeds, I hope we will be able to look at that again, because the coronial system is important to the country and particularly to victims and bereaved families, and it operates with variability, if I might put it that way, across the country. The Select Committee’s well-reasoned proposals deserve more consideration than they have perhaps had so far.
There is an argument to be made about equality of arms, which is again about funding. Massive sums are not required to give the families of victims in complex inquests equality of arms with state agencies that do not appear on the other side in technical terms, because of the nature of a coroner’s inquiry, but in reality are making assertions that the families would rightly wish to challenge and explore. I hope the Government will reflect on that as a measure of fairness and equity.
This Bill has proved to be less controversial than it was flagged up to be, and it is the better for that. It is a sensible, conservative set of incremental improvements and proposals that are welcome and should be supported. Parliament, the judiciary and the Executive have important and equal functions in our system. The rule of law does not mean that every public action has to be subject to judicial review, but it does mean that judicial review should be sufficient, strong and robust enough to ensure that victims of injustice are recompensed.
It is also important that we who sit in this House and who operate in the political sphere recognise the integrity of the judiciary in their sphere. As Lord Faulks’s review concluded, we can trust that the judiciary will act properly, accordingly and fully within the limits of their powers, and we should respect that, as we can also be confident that they will respect us.
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.
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West) Judicial Review and Courts Bill
Joanna Cherry ExcerptsTuesday 25th January 2022
(2 years, 10 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Amendment Paper: Consideration of Bill Amendments as at 25 January 2022 - large print - (25 Jan 2022)
Joanna Cherry (Edinburgh South West) (SNP)
I commend the hon. Member for North Shropshire (Helen Morgan) for her excellent maiden speech, and for her excellent and pretty amazing by-election victory.
I rise to speak to amendments 1 to 3, 5 and 37, which stand in my name and those of other hon. Members. My sponsorship of these amendments arises from the legislative scrutiny of the Bill conducted by the Joint Committee on Human Rights. The Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who is the Chair of the Committee and who would normally speak to these amendments, cannot be here today because of her bereavement. I extend my deepest sympathies to her and her family, and I pay tribute to her late husband, the former Member for Birmingham, Erdington, who was a widely respected and loved man.
I remind hon. Members that the Joint Committee is a cross-party Committee, with half its members from the Commons and half from the other place, and we undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence from a number of people on this Bill, and we have been advised by our own legal experts. On 7 December last year we published a report, which was unanimous, so it had cross-party support from across both Houses. We concluded that if clause 1 were enacted, it would
“not guarantee that an individual would receive an effective remedy for a violation of their human rights.”
We recommended that the Government remove the requirement in the clause
“as it amounts to an unnecessary…intrusion into judicial remedial discretion.”
As I say, that is an informed view reached on a cross-party basis after taking evidence, and that would be the effect of amendments 1 to 3 if they were passed.
If amendments 1 to 3 are not passed, there is a fall-back position. We also recommended that the Bill be amended so that the courts would have to have regard to the convention rights of any person who would be affected by such a decision and the duty to provide an effective remedy for a human rights violation under article 13. That would mean that when courts decide to make a quashing order with suspended or prospective-only effects, convention rights would be required to be taken into account. That would be the effect of amendment 37, which I reiterate that we see as a fall-back if amendments 1 to 3 are not passed.
I turn to clause 2. The Joint Committee shares the view articulated by my hon. Friend the Member for Glasgow North East (Anne McLaughlin) about Cart judicial reviews. We reached the conclusion that judicial supervision of the upper tribunal protects against legal error. Only a small proportion of Cart judicial review applications are successful, but in some of them, individuals could be prevented from being wrongly removed from the United Kingdom to face the most heinous human rights violations in other countries.
We said that rather than taking a hammer to crack a nut in that way, the Government should
“introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases.”
We also said that
“every effort must be made”
to ensure that the initial decision-makers and the first-tier tribunal
“make the best possible decisions when cases are before them”.
That would limit the need for asylum seekers to rely on a third opportunity to have their application for permission to appeal considered, and it would be the effect of amendment 5.
Generally on ouster clauses, which other hon. Members have spoken about this afternoon, the Joint Committee on Human Rights said in our report:
“We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation”.
Clearly, we are concerned about the possibility of undermining the rule of law, which is essential for the protection and enforcement of human rights.
Before I sit down, I want to give my personal support to the amendments tabled on behalf of the Scottish National party, and to reiterate what I said on Second Reading. It is not constitutionally appropriate for the exclusion of review of upper tribunal permission to appeal decisions to extend to Scotland. The Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge), who is in his place, has conceded to me in a letter dated 10 November that clause 2 will alter the jurisdiction of the Court of Session. It is not for this place to alter the jurisdiction of the Court of Session—that is a contravention of not just the devolved settlement, but article 19 of the Act of Union.
The Minister will say, “Oh no—it is not a contravention of article 19 because it’s a regulation for the better administration of justice.” I am sorry, but in Scotland we do not see regulations that circumscribe the availability of justice to individual members of the public as something for the better administration of justice. The Law Society of Scotland has been clear that a legislative consent motion is required; none has been sought, and none would be granted for an interference with the jurisdiction of the Court of Session.
Finally, as I said on Second Reading, there is no evidence base for there being any mischief in Scotland in relation to Cart judicial review; we actually call it Eba judicial review because of our case. The evidence base that the Government presented was completely confined to cases in England. If clause 2 passes, that will just be another example of this Government overriding the devolved settlement, undermining the Union. Please, Minister, leave Scotland’s legal system to Scotland’s Parliament, where it belongs.
Janet Daby (Lewisham East) (Lab)
There has been a lot of turmoil on the Government Benches over the past few weeks—partygate, allegations of blackmail and now Islamophobia. But one thing remains consistent and there is one thing we can count on: the Government have their eyes set on authoritarian rule.
Just look at the recent legislation brought before this House. The Nationality and Borders Bill grants the Government power to strip citizenship without notice. The Elections Bill imposes mandatory voter ID, discriminating against deprived and disadvantaged communities. The Police, Crime, Sentencing and Courts Bill gives the Government the ability to suppress protest that they deem too noisy.
The Government’s own manifesto promised to protect the individual from an overbearing state, yet this Bill does the opposite, fortifying the Government’s power grab. Judicial review enables individuals to challenge the legality of decisions made by public bodies. It ensures that decisions are made in the right way. When honoured, it is a vital process in checking the power of the Government and it is often the sole key to justice for the most vulnerable.
Without judicial review as it stands, EU citizens would have been deported for rough sleeping, innocent NHS staff would have lost their pensions and a child’s cardiac surgery clinic would have been unlawfully shut down. But instead of strengthening judicial review, this Bill strangles it.
Clause 1 incentivises the use of prospective-only quashing orders. That would mean that when a judge overturned a decision that they deemed illegal, justice would be available only for subsequent claims going forward. The judgment would no longer be retrospective. Past victims hurt by illegal decisions would receive no compensation. That does not sound fair or right to me. This measure hollows out the power of judicial review and inevitably means that more justice will be left unaddressed. In fact, as the right hon. Member for Haltemprice and Howden (Mr Davis) said, the proposals
“tip the scales of law in favour of the powerful.”
Is that not the story of this Government—more money for the wealthy and powerful and an absent hand for those who need it the most? The whole point of a democracy is that the state should not be able to steamroll its citizens, particularly the most vulnerable.
James Cartlidge
I beg to move, That the Bill be now read the Third time.
The Bill has received careful and sometimes impassioned scrutiny from Members on both sides of the House, and I thank all hon. and right hon. Members who have contributed. Were I to summarise the Bill in a nutshell, I would say that its common thread was streamlining our courts, not least so that we can bear down on the backlog that has built up during the pandemic.
Joanna Cherry
The Minister says that the Bill has received careful scrutiny. Does he agree that it is unfortunate that this Bill, which seeks to limit the jurisdiction of the Court of Session in Scotland, to use his own words from his letter to me dated 11 November, has not received the scrutiny of the Scottish Parliament, within whose purview the jurisdiction of the Court of Session and judicial review lie?
James Cartlidge
I respect the hon. and learned Lady’s considerable expertise in these matters. I did write to her on that, and I think I answered that question earlier. We scrutinised the Bill in great detail in Committee, but I accept the strength of her view on that point.
Part 1 of the Bill strengthens judicial review, ensuring that it continues to serve justice and good public administration. This would not have been possible without Lord Faulks and his panel, who produced an independent review of administrative law. Their thorough work in this area is of great importance and laid the foundations for the measures in the Bill. As it stands, the Bill delivers on commitments that we made ahead of the last general election. It offers more flexibility to judges and puts more tools in the judicial toolbox.
The reforms in part 2 modernise and improve aspects of the court and tribunal system. The measures support court and tribunal recovery, and deliver improvements to the criminal justice system and to coronial processes. They build on the lessons of the pandemic and will increase the efficiency, adaptability and resilience of our justice system.
Today we have also included provision in the Bill for a power to vary the maximum sentence that the magistrates court may give for a single triable-either-way offence. This is part of our plan to extend the sentencing power of magistrates, so that we can keep more sentence hearings out of the Crown court, freeing up capacity to help us to tackle the backlog more quickly. That extension will help us to retain more cases in the magistrates courts, reducing the flow of cases into the Crown court, and will help to support recovery in the Crown court, where it is so important. It is estimated that it will save around 2,000 Crown court sitting days per year, which is the equivalent of 500 jury trials, allowing us to reduce the backlog more quickly.
I thank all hon. Members who contributed to debate on the Bill, particularly the members of the Bill Committee, during which time we made some clarificatory amendments to the Bill. I also thank the witnesses who joined us in Committee; the range of contributions from experts of considerable esteem greatly enriched our debates. Finally, it would be remiss of me not to thank the excellent officials from the Ministry of Justice, whose support has been invaluable throughout. I commend the Bill to the House.