Judicial Review and Courts Bill

Joanna Cherry Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

There is a lot of bad in this Bill as it stands, and a lot not that is not yet in it. The Government must not be partisan when it comes to justice. Right and wrong supersede political alliances. For that reason, the Government should take seriously many of the amendments before us today.

[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.

--- Later in debate ---

[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.