John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Department Debates - View all John Hayes's debates with the Cabinet Office
Judicial Review and Courts Bill
John Hayes ExcerptsTuesday 26th October 2021
(2 years, 8 months ago)
Commons ChamberRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Fay Jones (Brecon and Radnorshire) (Con)
It is a pleasure to follow the hon. Member for Bath (Wera Hobhouse). I rise in support of the Bill and am keen to see it make progress through the House. Before I go on, this is my first opportunity to say how delighted I am to see the Secretary of State in his post and the new Minister in his place. I echo the comments made by the Secretary of State about the former Lord Chancellor, my right hon. and learned Friend the Member for South Swindon (Robert Buckland).
The Government are committed to fulfilling their 2019 manifesto pledge, and I am pleased that we are committing to yet another pledge to protect our democracy. The Bill will—at last—streamline our judicial system in both England and Wales, making it much more efficient. It is a good example of justice machinery, and I am pleased that my constituency of Brecon and Radnorshire will experience the benefits of these improvements.
I am glad that the Government recognise the impact of the pandemic on our court system and, as well as managing those pressures, are learning some helpful lessons and continuing with the steps they took during the pandemic to bring some court proceedings online, saving valuable time and resources. I acknowledge that the Bill benefits both England and Wales and, as the representative of a constituency with roughly 60 miles of the border between our two nations, very much welcome provisions that will remove the statutory requirement that magistrates courts must be divided into separate local justice areas. My constituents will often travel across the border for employment, education and other things, and the judiciary is no exception. In that spirit, I will focus my remarks on the courts elements of the Bill.
I commend the Government for the work they have already done, particularly in the field of domestic abuse. I was proud last year to be a member of the Domestic Abuse Bill Committee and am even prouder that that Bill was prioritised by the Government during the height of the pandemic. The Government, conscious that coronavirus was not the biggest threat for those enduring lockdown with their abuser, made sure that the Committee could meet and that both sides of the House could scrutinise and improve that Bill.
One of the many strengths of the Domestic Abuse Act 2021 is the improvements it has made to the family courts. On that, I would like to see this Bill go further. In family proceedings, the Domestic Abuse Act introduced an automatic ban on cross-examination in person when one party has been convicted of, given a caution for or charged with certain offences against the witness, or vice versa. The provisions also introduced an automatic ban on cross-examination in person when an on-notice protective injunction is in place between the party and witness or when there is other evidence of domestic abuse. That is a crucial step, and one that I am very proud of.
Having praised the Government, I will ask the Minister to go further—he will not be surprised by this—and consider further amendments for family court proceedings. I do so on behalf of my constituent, Natalie Davies, who came to see me and has given me permission to mention her and raise her case. She lives in my constituency with her partner, baby and two primary school-aged children from her previous relationship. In February, she came to ask for advice due to the complexity and sensitivity of a legal dispute between her and her ex-partner.
I will not go into too much detail about Natalie’s case. However, while the conclusion reached by the judge was in her favour, her experience in the family court was completely unacceptable. In her words, it was a “complete misery”. The way in which she was treated by the judge was simply wrong for a modern age. She claims that she was repeatedly undermined throughout her case, which caused her immense distress, and she felt as though a completely one-sided approach was taken. Her barrister later confirmed that the judge had to be persuaded to read both sides of the case. During her hearing, the judge referred to her as “young lady” and commented on the fact that she was “already”—his word—expecting a baby with her new partner. He also googled her home and searched for images of her new home on Rightmove.
Natalie complained to the Judicial Conduct Investigations Office, as is proper, but she had no response, until two days before a further hearing with the same judge. She was hastily told that her complaint had been rejected. She was told that no misconduct had taken place. Had the judge fallen asleep, that would constitute misconduct, but patronising—even misogynistic—remarks and apparent predetermination on the part of the individual somehow did not constitute misconduct. I find that deeply troubling.
All in the House would of course agree that the judiciary must be free from direction by Ministers. That is entirely appropriate. However, the existing system is not working. This might well be out of scope of the Bill, but it appears to me and the other individuals to whom Natalie has introduced me since coming to see me in my surgery that we have an imbalance here, which I wonder whether we may explore as the Bill travels through the House.
We must look at a situation in which individuals do not have access to a clear and transparent complaints system. Natalie’s complaint was backed up with a written statement by her highly trained barrister, and yet it was still dismissed out of hand.
Sir John Hayes (South Holland and The Deepings) (Con)
My hon. Friend makes a compelling case along particular lines. She is right about access to legal recourse. I do not know whether she has had a chance to look at the important speech given last week by the Attorney General, which sets out how, in parallel, people are using the courts to perpetuate political debates. Ironically, some people do not have access to justice, and others are using the courts for political ends, which is why the Bill is so important.
Fay Jones
My right hon. Friend is absolutely right, and I bow to his experience in these matters. That should be considered as the Bill travels through the House. I want to see it make progress and I commend the Government for their ambitions thus far, but I would like, and would be grateful for, a conversation with the Minister about what we can do to ensure that all those who have the inevitably difficult experience of going through the family court are treated with the utmost respect.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Second sitting)
John Hayes ExcerptsTuesday 2nd November 2021
(2 years, 8 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
Sir John Hayes (South Holland and The Deepings) (Con)
Q
“an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.”
That also reflects the view of Lord Sumption who, the witnesses will be aware, has commented:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament … confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do.”
He added that
“if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”
There is clearly a problem. We have heard that from other witnesses this morning. The problem needs to be solved. I have some sympathy with the view that the Bill does not go far enough and that we could do more. However, the idea that we should do nothing seems to me to ignore the facts.
Ellie Cumbo: If I may say so, I have not heard facts. I have heard assertion; I have heard the opinions of two people, neither of whom have been recent practitioners. On behalf of the Law Society, I do not think that we would agree that we have seen evidence that there has been an increased politicisation of the courts. In any case, it is not up to the judges to decide what cases come before them. This question is largely about the remedies available in judicial review; that is what the Bill seeks to focus on. Our view is that judicial discretion is what enables a proportionate remedy that correctly responds to the facts of the individual case to be made.
Sir John Hayes
Q
Ellie Cumbo: Certainly, but, as I say, I have seen no evidence to suggest that that is what is happening.
Sir John Hayes
I will give you some evidence in a second, but others may want to comment first.
Ellie Cumbo: I was actually going to make a slightly different point that actually enhances the ability of the Bill to protect judges from any assertion that they are in fact dabbling in matters of policy, which is that the provision we were just talking about earlier—to create suspended quashing orders—is not entirely clear on the face of the Bill. What it actually says it may do is allow for conditionality in suspended quashing orders: in other words, you would introduce a quashing order that would take effect only in the event that certain conditions laid down by the courts are or are not met. That is, arguably, inviting judges to pass a view on what an acceptable policy solution in those circumstances would be. We would welcome some clarification on that point of the Bill in order to ensure that it is very clear that judges are not being invited to pass policy.
Sir John Hayes
Q
To give an example, I understand that a character called Jolyon Maugham—I am inclined to say, wearing my inverted snobbery on my sleeve, that there were not many Jolyons on the council estate that I grew up in—is going to take to judicial review the appointment of the new chair of the Charity Commission, at least according to reports. That is despite the fact that in parliamentary answers it has been made clear that that appointment has been an open and fair competition in line with the Cabinet Office’s governance code on public appointments, as regulated by the Commissioner for Public Appointments. Even where the process has been entirely fair and reasonable, the judicial review is being used as a way of asserting—one might go as far as to say campaigning—for political ends.
Ellie Cumbo: I do not want to continue to speak if my colleagues would like to join in. I will just say that I am not familiar with the merits of that case and cannot comment on it. I would return to the point that the Bill is primarily looking at the remedies that should be available in the event that a decision in that case was found to be unlawful. Our view, as stated already, is that remedies should be effective whatever the impugned decision is.
The Chair
Sara or Louise, do you want to join in?
Sara Lomri: Yes, I would love to. The assertion around the increased number of political cases and litigation remains just that; Lord Faulks and the IRAL looked at this and there was no such finding. At PLP, we advocate for and promote evidence-based approaches to policy. We know that there are around 4,000 applications for judicial review every year and around 1,000 get to trial. We know that in the majority of cases defendants win, not claimants.
In terms of the cases that you, Mr Hayes, and the Attorney General are talking about, there are probably a handful over a couple of years. It is understandable why those cases may take up a lot of oxygen, and of course we cannot talk for Jolyon Maugham and what that case is about.
I am a solicitor and I represent individual, marginalised, disadvantaged people who have no option but to use judicial review to hold the state to account. By passing this Bill you are going to make it harder for those people: the vast majority of users of judicial review on a day to day basis. You are going to make it hugely more difficult for them to get access to justice.
Alex Cunningham
You have anticipated the rest of my questions. I do not know if either of your colleagues wish to comment. No.
Sir John Hayes
Q
“challenges to legislation on the grounds of discrimination are becoming increasingly common in the UK, usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
They are assisted in that, are they not, by the principle of proportionality, which confers on courts a broad discretionary power that risks undue interference of the courts in the sphere of political choices. That is very bad, is it not, both for a democratic society and for the role and reputation of courts, because the separation of powers—well, I do not need to lecture witnesses on the separation of powers. They know what it means. We have a problem that needs to be solved by legislative means. The Bill is a welcome start in that respect, is it not?
Sir John Hayes
I am happy for any or all to take it.
Steve Valdez-Symonds: I am happy to respond to that on behalf of Amnesty. With respect, I think that is to misunderstand the role of the courts. The courts manage—indeed, you make a reference to the Supreme Court giving clear direction about its view to all the other courts below it as to how to manage the matters that are brought before it, including matters that raise the issue of proportionality. Proportionality, where it applies, is a question of law on which courts need to rule. That is why we have a judicial system, not for Parliament to try to predetermine how courts should exercise that role and perform their judicial function, in ensuring that administrative bodies act proportionately, according to the law and according to its interpretation as clearly set down now by the Supreme Court.
Sir John Hayes
Q
Steve Valdez-Symonds: The Supreme Court.
Sir John Hayes
I was reading out a court judgment, so there are a number of distinguished judges who share the view I articulated, as you know, that proportionality has become a problem and the Supreme Court has interfered in matters of high politics. That is the argument that has been made by the Attorney General, Lord Sumption and others. That is not my view; it is the view of those who want to see the courts doing what they traditionally did. It is a long-established and time-honoured principle that courts do not become involved in matters of high politics and the argument I am making—or reflecting—is that that is now a problem. We saw it in the Miller case and there is no guarantee that the Supreme Court would not act as it did in the Miller case again. We need to do more to clarify and make certain the respective roles of those who are chosen by the people and who are accountable to them, and those who are not.
Steve Valdez-Symonds: If I may, I will make two responses to that. First, with respect, you started reading from the Supreme Court’s judgment on the question that you were concerned about, I understood from you, in support of what the Supreme Court had ruled and the direction it has given therefore to all the courts below it as to how judicial proceedings on the matter in question should be performed in future. It seems to me that the matter is addressed by the Supreme Court in black and white in front of you.
As for the wider question, the issue is clear that the Government set out—commissioned—a review of judicial review. It had eminent evidence from many public bodies, including many Government Departments, about whether there were concerns. Its overriding finding on judicial review generally was that there was no problem. Again, for reasons that have also been given earlier, I do not see that there is any need for this interference, frankly, with the way in which courts perform their constitutional function.
Sir John Hayes
Q
A good argument for a process of judicial review is that the grounds on which it is exercised have altered. As you know, the Attorney General has made clear her concerns about this, as have a number of senior lawyers, former Supreme Court judges and others. The argument I am making is by no means an unusual or untested one. You will have heard it many times before. I am simply saying are not the Government right at least to address those concerns?
Steve Valdez-Symonds: With respect, all I can do is refer to the previous answers and say that I think the Government are not right. Of course, there were many voices, including judicial voices, that have considered that the situation is satisfactory as it is, including the review that the Government commissioned.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept what you have articulated, but you started by reading from a very recent Supreme Court judgment, which I understood you to agree with. I do not really see what you see as the problem. The Supreme Court has ruled on the matter. It is the highest authority for all the courts that will have to deal with the matter in the future and there is no ruling.
Sir John Hayes
Q
Steve Valdez-Symonds: But it did not in the very matter that you have just read from in its very recent judgment.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not accept that.
Sir John Hayes
Q
Steve Valdez-Symonds: I do not think I can add any more. I am sure the Government’s review spent considerable time with considerable amounts of evidence—more time than this Committee will have to consider these things, unfortunately—came to a clear conclusion that there was no need essentially to revise the way in which judicial review works. It was working perfectly well—we agree with that.
The Chair
Sir John, my interpretation of what you are saying is that you want to widen the scope of the Bill. The scope of the Bill is already set, so with the indulgence of the Committee, I move to the next questioner, Andy Slaughter.
The Chair
Very quickly, as we are running short of time and we have a number of questions to come.
Aidan O'Neill: Absolutely. I think the Sewel convention is engaged because, apart from anything else, the reform proposed in the Bill would also require an amendment of section 27B(3) of the Court of Session Act 1988, because that embodies the Cart/Eba test, and that is a statute falling within devolved competence. At the moment, I do not see that the Bill attempts to amend that Act, and I think it needs to do so if it is to apply properly in Scotland. That makes it plain that it is a Sewel convention issue.
Sir John Hayes
Q
“Ultimately, law cannot guarantee individual liberties or good governance unless it is supported by a culture of responsible politics”.
He went on to say:
“The risk of too much intervention by the law in politics is that it can undermine the culture on which law itself depends for its effectiveness in relation to other matters…Responsible politics requires incentives to listen to other points of view and to conduct civilised debate to convince others. None of that is necessary if the authority of the law can be enlisted to force the views of one side on the other.”
Inasmuch as this Bill goes some way to redress the balance between that authority and the democratic will of Parliament, is it a helpful and useful step? In what ways might it go further in redressing that imbalance?
Aidan O'Neill: I am happy to speak briefly on that. There is not an imbalance. We are all subject to the rule of law—Parliament as much as the Executive and the courts—and it does involve a mutuality of respect. There is absolutely no doubt about that, but the Parliament has to respect the basic fundamental rights and the procedures by which those have been maintained over centuries in this country without a revolution. It is all a matter of that maintenance of a mutuality of respect, and I have seen absolutely no evidence to suggest in any way that there has been any breach by the courts of those basic fundamental principles in which all three organs of government—courts, Parliament and the legislatures generally, and the Executives of the Union—seek to respect the rule of law and fundamental rights, and the procedures that allow those to be vindicated.
Sir John Hayes
Q
Aidan O'Neill: I am not sure whether it is the general view. I am certainly speaking from my own experience, having been involved in a number of cases of some import over the past 30 years of my practice. But I am also echoing the views set out in the formal response to the IRAL consultation by the Faculty of Advocates, which generally said that one thing that one ought to avoid in any discussions of the constitution is the notion of absolutism and of the zero-sum game—that if courts say something, that means that somehow the rest of us are—[Inaudible.]
We all benefit from the dialogue that goes on and the maintenance of a balance of powers. Frankly, I would not accept any suggestion that the courts have in any sense in recent years or earlier overstepped the boundaries of their stating what the law is, and the obligations that fall upon all of us to respect it, whichever position we are in. “Be ye never so high, the law is above you”, and that applies of course to lawyers and the courts as well, but it does involve this mutuality of respect, so I am sorry, I am afraid that when one looks at the evidence, there is absolutely no basis for declaring that the courts in recent years or earlier are overstepping any mark.
Andy Slaughter
Q
Secondly, we have heard—particularly this afternoon—about the effect on individual litigants, and that some of the provisions may be a discouragement, whether in mounting a case in the first place or in obtaining a remedy. What is your view on that?
Dr Tomlinson: I have concerns about both provisions. I will summarise my view in headline form.
In relation to clause 1, I would first like to clarify that I do not think it reflects what IRAL proposed; it goes further that what IRAL proposed. The risk with the changes to remedies is that they will leave some individuals without a remedy in their particular case—for instance, where a remedy is prospective only. There will also be a potential chilling effect on claimants. Why would you bring a case if there were a chance that your remedy is not going to apply to you? Why would you take the various risks involved? It is okay, in an academic sense, to separate out the issues of remedies and say, “They come at the end of the case,” but the practical reality is that claimants consider what will potentially come out of a case at the end, so remedies are relevant to that initial analysis on whether to bring a case in the first place.
Clause 1 also potentially puts judges in a position of having more power, in terms of remedies, than they have currently. Given the points that have been made today and in discussion with this panel, I am not quite sure that the way that will operate in practice is what is intended. I think clause 1 will leave some significant uncertainty that might also generate further litigation.
I have already spoken about clause 2, but very briefly, there are two really important points. One is the point of principle: does Parliament want to enact an ouster clause and is that a thing that Parliament should be doing? The second key point is the use of judicial resources: is Cart judicial review a proportionate use of judicial resources? The really basic calculation, to my mind, is that you have a roughly one-in-20 success rate. The cost of those cases is around £364,000 a year according to the MOJ’s figures—not a great deal of money. As I said earlier, the success rate is potentially higher than that.
The financial figures produced by the Ministry of Justice are, I think, a little bit too high in various respects—they include, for instance, the cost of cases won by claimants. Overall, I think there is a question there: is that cost worth it, given the kinds of errors that this Cart system protects against? There can be reasonable disagreements about that. My view would be that the cost of the jurisdiction is worth it because of the errors that it protects against—you have heard case studies of the impacts of those errors today. Those are my concerns in relation to clauses 1 and 2.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (First sitting)
John Hayes ExcerptsTuesday 2nd November 2021
(2 years, 8 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
Sir John Hayes (South Holland and The Deepings) (Con)
Q
Professor Ekins: I will go first, since you directed that at me. It is true that the independent review of administrative law noted a worrying trend in relation to cases in which fairly abstract constitutional principles were used to develop the law in surprising ways. It is true that the review held short of recommending legislation in response, but it attended to this as a problem, and I think it is quite rightly within your field of vision as something that should be attended to. The review noted in particular the perfect legitimacy of Parliament legislating in response to particular cases that it thinks break new ground in problematic ways, which might include the Prorogation judgment or Unison, Evans and other cases. That would also include the Adams case, which the review briefly referred to. It is very true that that case made a significant change that is problematic for our law and government. Sir Stephen and I wrote a paper last year for Policy Exchange noting the shortcomings of the judgment—that it really undermines the Carltona doctrine, which is central to the way in which Parliament confers power on Ministers and how civil servants exercise that power. I think it will be a very good contribution to the rule of law to restore and vindicate that principle.
Sir Stephen Laws: If I can come in, I endorse everything that Professor Ekins said. The Adams case is very disturbing and undoes the assumption on which, for almost three quarters of a century, government has carried on. It needs to be urgently reversed.
On the question of parliamentary sovereignty, one of the great defects of the law as currently applied in proceedings for judicial review is that it does not adequately distinguish between the different sorts of decision making to which it is applied. It assumes that the same or very similar principles, processes and remedies are appropriate for a challenge to what you can call casework decisions by public officials in individual cases as should be applied to challenges to legislative decisions.
It seems to me that courts are deciding what the rules should be in future, hypothetical cases, or what the rules should have been in past cases that are not before them. They need to apply very different principles from those that they apply when they have one case before them and the public official has been doing something very similar—[Interruption.]
The Chair
Your sound has gone, Sir Stephen.
Professor Varuhas: May I come in while Sir Stephen fixes his audio?
Sir John Hayes
Q
The Chair
Who wants to take that question? Anybody?
Professor Ekins: I will go first. I have been highly critical of the Privacy International judgment, and I share the view that the majority judgment, or Lord Carnwath’s judgment, with which Lady Hale and Lord Kerr agreed, was outrageous. Those three judges are no longer on the Supreme Court, but that judgment is part of the common law and it does warrant a response. There were many other things going on in May 2019, so maybe it is not a surprise that it did not get much public attention, but that judgment did constitute a very serious attack on some fundamentals of the constitution.
Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think. The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute, and the primacy of legislative intent in interpreting statute is one of the fundamental ways in which the rule of law is secured. It is true that the rule of law is often bandied about as though it warrants adventurous judicial action that cannot be squared with the existing constitutional law or with the terms of statute, because we are going to make it better and we are going to impose further controls on the Government or public bodies.
As Lord Hughes, who was on the Supreme Court at the time, said, that is to confuse the rule of law with the rule of courts. You do not see that just with the Privacy International case, we see it in the Evans case, involving the Freedom of Information Act 2000, where a clear statutory power was undone. Three judges interpreted it so that it does not exist any more, and another two judges, also during the majority, attacked its exercise in a different way. This is a worrying trend, and the independent review noted the Evans case.
If Parliament can notice and respond to those judgments, it will both correct the law that has been undone and make clear that the technique is seen and is not tolerated as legitimate. In cases where judicial review breaks new ground and is being carried out in a way that is inconsistent with statute and long-standing principle and rules—the Prorogation judgment is very large here—the litigation is an extension of political argument and a way of getting the courts to weigh in on your side in a controversy. That is destructive of the courts’ reputation and of the political constitution that should be framing those arguments, and it is not vindicating the rule of law but undoing it and undoing the political foundation for our parliamentary democracy.
Sir Stephen Laws: I would agree with that. It seems to me that the fundamental principle that should be upheld as part of the rule of law is the need for legal certainty and predictability. Judicial law making undermines that because it produces new law that nobody was able to expect, and because of the myth that the common law has always existed, it also creates the further injustice of retrospective effect.
If ordinary citizens cannot predict with certainty before they act what conduct will escape censure, that is a serious injustice. If public officials cannot be sure that what the law allows them to do, adherence to the law for them ceases to be a matter of principled compliance and becomes instead a straightforward commercial exercise in risk management, and that is a very bad thing for the management of public affairs generally.
The Chair
Very quickly, because four more people want to ask questions. We are running on time.
Dr Morgan: Very briefly, I broadly agree. I think this will work for Cart. I think the Government are mistaken to see it as any kind of template, and that they can put exactly the same words into another Bill about some other different matter and that it will work, because it is not only about the words that Parliament uses but the entire context. Sir Stephen Laws, himself a parliamentary draftsman, made just that point—that it is not only the literal meaning of the words but the whole context. That is why it will work in Cart, but it may not work in another statute, even if precisely the same words were used. I would not see it as a template or model.
Sir John Hayes
Q
Dr Morgan: There was a debate earlier about whether this should be described as tit for tat, which I do not like either, but doing it on a case-by-case basis. If you are not a lawyer and you read through the Cart judgments, you will see that it is all highly technical stuff about the number of appeals you should have within a particular structure. I have never heard anyone suggest that the judges in Cart were guilty of judicial activism. I think it is a relatively technical problem that has created a lot of expense and lots of hopeless judicial reviews, and the Government are taking action to address that.
I will not keep saying “sexier subjects”, but the more egregious examples of muscular judicial review have been mentioned earlier: Privacy International, the Prorogation case, and Evans v. Unison. There is a case for Parliament to reverse them. In my view, it has a constitutional right to do so if it wishes, but they should probably be taken one by one. Maybe we need a different Bill to do that, and the Government can tell us whether that is their intention, but the two clauses here deal with some real problems in a fairly unflashy way. Ouster clauses might be needed if we are to reverse the other cases, but I think that has to be debated separately. It is not really within the scope of the Bill at all.
Sir John Hayes
Q
On the issue of judicial activism, is this the right Bill to explore that, or are you suggesting, as you implied just a moment ago, that perhaps another piece of legislation will be introduced to deal with that in the light of the Evans case, the Miller case and the other cases that we have seen prevailing over a number of years? There is a challenge for democratic Government that needs to be addressed.
Dr Morgan: In my view, it would be a shame if the valuable things that are in the current Bill were lost because other things were put in that were frankly much more controversial. I am not the manager of parliamentary time; I do not know how easy it is to get another Bill going through. There is always a temptation—the Minister laughs—to tag things on, so maybe this is an opportunity not to be missed. I have read Richard Ekins’s list of desirable amendments, which would keep Parliament going for about five years, and with heated rows, if all those were put in.
Sir John Hayes
I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
The Chair
Professor Feldman, do you want to come in on that?
Professor Feldman: Only to say that I would not want to be thought to agree with the suggestion that there has been a sudden rush of judicial activism. Judicial activism is extremely difficult to define, and people who say there is a lot more judicial activism than there used to be tend to pick on a very small number of fairly high-profile cases over the last few years. It may be that there are more of those than one might have expected in the length of time passing. Having been involved in this subject for over 40 years, as I said before, it seems to me that there has been a process of gradual—it has been gradual—development of principles of administrative law and their application since the 1950s, so we are talking about getting on for 70 years.
Nothing has happened suddenly and things have not all gone in one direction; there has been progress in one direction and then a pushback. I suspect we may be going through a pushback at the moment, within the judiciary itself. Judicial activism is a term that I do not really understand and I would not want it to be the basis of legislation.
Sir John Hayes
Q
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Fourth sitting)
John Hayes ExcerptsThursday 4th November 2021
(2 years, 8 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 4 November 2021 - (4 Nov 2021)
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is a pleasure to serve under your chairmanship again today, Sir Mark. I welcome all members of the Committee. I hope we can look forward to an interesting and robust debate on this important Bill.
I welcome the Labour spokesman, the hon. Member for Hammersmith, to his position. He is returning after six years, I think, to a similar post. While he obviously looked in significant detail at the Bill, he almost strayed into political caricature, suggesting somehow that we, as a party, thought all lawyers were lefties—I think that is the phrase that was used. That is quite interesting, not least if one thinks of the Secretary of State, for example, who is a lawyer by background, but not, I think, a leftie. The hon. Member for Stone (Sir William Cash) is a solicitor and is certainly not a leftie, and neither was the late, great Baroness Thatcher, who was a barrister by training and one of the greatest Prime Ministers in our history—a victor in the cold war, no less.
My hon. Friends the Members for Sleaford and North Hykeham and for Dudley North were not as chronologically comprehensive in their contributions as the Labour spokesman, but they made some extremely important points. Both of them stressed the point about trusting the judiciary. We certainly do not see lawyers as lefties, nor are we engaged in any kind of conspiracy or attempt to somehow engineer a confrontation with the judiciary. On the contrary, the whole basis and premise of the Bill is to trust in the ability of judges to use their discretion to reach judgments that reflect the most appropriate remedy, given all the factors in a specific case at hand. That is the underlying principle.
The amendments in this group relate to the measures on so-called prospective-only quashing orders—those being quashing orders with limited or no retrospective effect—and the ability of the courts to apply conditions when using either a prospective-only or suspended quashing order. Amendment 12 attempts to remove entirely the ability of the court to permanently limit or remove their retrospective effect. The belief behind the amendment seems to be that limiting the retrospective effect of a quashing order will always unfairly affect the claimant—the person who has brought the judicial review. We wholly reject that argument and take the contrary view.
I believe there is significant benefit in providing powers to limit or remove the retrospective effect of quashing orders, obviously in specific cases. Normally, when a decision is quashed, the effect of that quashing is retrospective, in that it deprives the decision of ever having had legal effect. As such, regulations and decisions are deemed never to have been made, and therefore a person undertaking what they thought was a lawful act on the basis of those regulations or decisions may in fact have been relying on something that had no legal effect whatsoever. That is particularly problematic for certain regulations that many people rely on every day in good faith.
The hon. Member for Hammersmith said that the sort of cases where there would be wide-ranging side effects from a quashing order, particularly of an economic or social kind, would be rare. They are certainly not huge in number. The Public Law Project—an organisation that we all recognise has significant expertise in this matter—did a study in 2015, which found that, of a sample of 502 judicial reviews, 18% related to procedure and policy and 8% to wider public interest. These judicial review cases that have much wider impact are not insignificant in number, but there is a much more important point to be made. Even if the number is small, the number of persons affected is likely to be many thousands. That is why it is so significant.
I raise again the real case study that I brought up on Second Reading. I will keep coming back to it because, while there are many other examples one could use, it neatly summarises where one would use one, if not both, of the remedies we are introducing, and do so not to undermine the rights of the claimant or the victory in court that they obtained—far from it—but to avoid detriment in the real world to our constituents.
I gave the example on Second Reading of general licences for the control of wild birds and the chaos that was caused when those licences were revoked, leaving farmers unsure whether actions they had taken in the past on the basis of those licences would suddenly land them in trouble. I remind the Committee that it was Natural England that immediately decided to revoke the licences, through fear of a judicial review. The case did not go through; it was the fear of one that meant Natural England was given advice that it should withdraw the licences.
As a rural MP, I received the correspondence at the time, so I know that that caused great concern, frustration and, as I quoted the National Farmers Union saying on Second Reading, anger among farmers and others. It is all about this point of good faith.
Sir John Hayes (South Holland and The Deepings) (Con)
The Minister is right, and of course the fact of the matter is that judicial review is available to responsible and sensible people who are pursuing a grievance, but it is also available to vexatious and irresponsible people who are pursuing an argument that has been settled elsewhere, but that they seek to perpetuate through the process of law. That is why it needs to be redirected to its proper purpose in the way the Minister is outlining.
James Cartlidge
I am grateful to my right hon. Friend, who has considerable expertise in these matters and speaks on them very well. By the way, I am not suggesting that the Natural England case—it did not go to court, but there was a threatened judicial review from an organisation called Wild Justice, which I think Chris Packham is associated with—was vexatious. I make no comment on that. The point is that it would have achieved its aim, which was to have those particular licences declared unlawful, so the claimant would have been successful.
As I said at the time, had the remedies in the Bill been available, the legal advice could have assumed that at least one, or both, would have been used. If the prospective remedy, which we are debating in respect of these amendments, had been used, it would have made the many thousands of farmers, gamekeepers and others who were using those licences for shotguns far more certain that there would not be some kind of action, which from their point of view would be essentially retrospective, regarding the way they had used those licences that could undermine their rights, even though at the time—this is always the key thing about retrospectivity—they would have been using them both in the belief that they were lawful and in good faith. That is why this point is so important.
Sir John Hayes
I have no desire to prolong the hon. Gentleman’s oration, but he says that the statutory presumption has little or no support. The witnesses that we heard from when we first met as a Committee said the exact opposite, however. They said that the reform was necessary because of the change that has occurred to judicial review over time. As I said earlier, this Bill is an attempt to affirm the sovereignty of judicial review by reaffirming its proper purpose. Does the hon. Gentleman discount the views of those expert witnesses when he says that almost no one supports it?
Andy Slaughter
I take the right hon. Gentleman’s point very seriously. We touched on that point this morning, although I know he was not in Committee. I gave a little thumbnail of some of the witnesses and indicated that their views were—as one might expect from senior academics and practitioners—free from bias and prejudice, and what they said was quite interesting and variegated.
If the right hon. Gentleman were talking about suspended quashing orders, I would have some sympathy with him, because I think the balance was probably in favour of those, with some reservations. Even on prospective-only orders, there was a degree of support, and that may be what he is referring to. I thought that there was very limited support for the statutory presumption, however. Some people think it is okay and some wish to go further than what is in the Bill, but I would say that the balance of opinion, in the responses to the previous consultation—let us remember that in addition to IRAL, the Government have had their own consultation—and in the written evidence submitted to the Bill Committee, has been overwhelmingly against the presumption, for some of the reasons that I am giving.
We do not believe that a statutory presumption is in keeping with the Government’s own stated commitment to pursuing incremental change. It is not yet clear in what cases a suspended or prospective-only quashing order would be appropriate, and there remains some apprehension about the possible consequences of those orders. They should, therefore, be used with caution. A statutory presumption could force the court into using these provisions in circumstances in which they would not be appropriate.
Any legislation will lead to debates in court as to the meaning of terms, but it is not justifiable unnecessarily to introduce new processes and concepts for the courts to grapple with. The Government state that proposed new section 29A(9) of the Senior Courts Act 1981 can
“direct and guide the court’s reasoning to certain outcomes in certain circumstances”,
notably, whether remedies under new section 29A(1) can provide adequate redress. However, the courts already seek to craft the most appropriate remedy for the circumstances that are before them. A court will issue a prospective or suspended order if it is the most appropriate remedy. There is no need for a convoluted legislative provision telling the courts to do so.
The presumption also conflicts with the Government’s stated aim of increasing remedial discretion, as it requires particular remedies to be used in certain circumstances. We oppose prospective-only orders for the reasons set out in the earlier debate, but if they are to be used, it should be at the court’s discretion. Suspended orders should also be used only in exceptional circumstances, as determined by the court.
It would greatly undermine the protective constitutional role of judicial review and risk incoherence if proposed new section 29A(9) constrained the courts to issue a suspended order or a prospective-only order when a straightforward quashing order would be more suited to the circumstances of the case. I therefore submit that proposed new section 29A(9) can be removed. In applying the presumption, proposed new section 29A(10) requires the court to
“take into account, in particular”
anything under proposed new section 29A(8)(e). This directs the court to give special consideration to anything that the public body with responsibility for the impugned act, which may or may not be the defendant, has done or says it will do. However, there are difficulties with making a prospective-only quashing order on the basis of statements made, or even undertakings given by the defendant.
First, only the claimant would be able to enforce, if at all, the undertaking or statement, even though others will also be impacted by the defendant’s non-compliance. Further, claimants may not have the funds, ability or resources to bring the case back to court. Secondly, the recourse would only be against the defendant public body, not against other public bodies who have said they would act. Thirdly, in rejecting the introduction of a conditional quashing order, the Government recognised the practical difficulties with deciding whether a condition has been complied with—the same concerns apply equally to court orders made on the basis of public body assurances, including the potential for further protracted and costly litigation.
The courts do already take into account steps that the Executive or Parliament are intending to take or have taken, as well as now being required to by proposed new section 29A(8)(e), and generally accept that the defendant will comply with the court’s ruling on lawfulness. However, it should be for the courts to determine in the circumstances of the case what weight should be given to public body assurances, to ensure that the most appropriate remedy is made, considering the difficulties with relying on assurances. The courts should not be required to preference these assurances at the expense of other considerations, in particular the impact on the claimant and other third parties.
Suspended and prospective quashing orders both have a significant impact on the ability of individuals who have been subject to state wrongdoing to receive a full and timely remedy. Furthermore, they allow, to varying degrees, an act that has been found to be unlawful to remain valid and untouched. The courts must remain alert to the potential impact of these provisions in particular cases, and a statutory presumption would hinder their ability to do so. At a minimum, we believe this presumption must be removed.
Clause 1 stands to weaken the effectiveness of remedies available to the courts. The Government claim that they are giving extra tools to judges—as we heard earlier—but by imposing a presumption in favour of their use, they are in fact restraining the freedom of the courts to rule as they see fit. That is the key point that the Minister needs to answer. This presumption restricts the remedial discretion of the courts and should be removed.
As a less preferable alternative to removing the presumption altogether, our amendment 23 seeks to remove the presumption in proposed new section 29A(9) and insert a precondition of the court’s exercise of the new remedial powers, that they would offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 24—less preferable than both 22 and 23 —leaves the presumption and would require an effective remedy to the claimant and any other person materially affected by the impugned act. The Committee cannot say that we are not trying, at least, to meet the Government halfway on this matter. I have set out a smorgasbord of alternatives, from which the Government can select what they wish.
The phrase “adequate redress” in proposed new section 29A(9)(b) should be amended to “effective remedy” to increase certainty, and it should be made clear that the redress or remedy must be adequate both for the claimant and for any other person affected by the impugned act. The proposed new section 29A(10) should also be removed in its entirety.
With amendments 13 and 14, the power to suspend quashing orders and prospective-only quashing orders would be limited to exceptional circumstances where it is in the interests of justice through an amendment to proposed new section 29A(1). I do not think I need go into any detail on those amendments; they speak for themselves. Again, they are not ideal, but it would be good if in the Bill it was indicated that where these—in our view—undesirable remedies are to be available, that they should be limited to where there are acceptable circumstances or it is in the interests of justice.
Amendment 20 seeks to address the issues caused in proposed new section 29A(8)(e), which states that the court must consider
“any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act”.
I am particularly concerned with the requirement on the courts to consider any action proposed to be taken. This provides little or no legal basis to require the public body to act, especially if only said during submissions and not reflected in the court’s judgment. The reality of public body decision making, Executive action and the legislative timetable is that priorities and policy positions change, and resources and time may have to be diverted. In the meantime, the judicial review claimant and all others adversely impacted by the measure must wait—potentially continuing to be detrimentally impacted—with limited, if any, legal recourse against the defendant or other relevant public body. There is too much uncertainty in the actions a public body proposes to take to form a legal basis for suspending a quashing order or making it prospective-only. Any intentions indicated to the court could change in the light of subsequent developments, leaving those affected potentially without any recourse. The words
"or proposed to be taken”
should be removed from proposed new section 29A(8)(e) so that it refers only to undertakings.
Amendment 36 provides clarity that the principle of good administration includes the need for administration to be lawful. This requires clarification. There are five main reasons why greater recourse to these weakened remedies, and especially any presumption in their favour, should be resisted. I will conclude my comments when I have gone through those five reasons.
First, these remedies place victims of unlawful actions in an unfair position; remedies which are prospective-only may leave individuals without redress at all. Secondly, they insulate Government from scrutiny and make it more difficult for decision makers to be held to account. Prospective-only remedies would be particularly likely to have a chilling effect on individual claimants bringing judicial review claims. Why, as we have already said, would someone spend money, time and effort to challenge an unlawful decision made against them if that decision cannot be rectified in their specific case? The proposed changes risk creating a situation where unlawful actions go unopposed and individuals’ ability to defend their rights against an overbearing state is undermined.
Thirdly, the remedies make it more—rather than less—likely that judges will be forced to enter the political realm. The effect of a suspended or prospective-only quashing order may be to grant legal validity to an action that, on its face, contravenes an Act of Parliament. It creates a judicial fix for an unlawful Government act, when such an action would ordinarily be the exclusive domain of Parliament. Further, when deciding whether to issue a weakened remedy, judges must consider the likely future actions of public bodies, something that judges have previously described as a job they are ill-equipped to undertake. That would be an especially regrettable and ironic consequence when the Government’s avowed aim is to prevent judges stepping into the political realm.
Fourthly, and as senior judges have acknowledged, one of the benefits of the current system of quashing orders is its simplicity. While being presented as a measure that promotes certainty, the new remedies in fact generate significant uncertainty about how they will operate and are likely to result in expensive post-judgment satellite litigation. That uncertainty, together with an increase in costs, will create yet another practical barrier to individual claimants bringing judicial review claims in the first place. Fifthly, proposed new section 29A(5) undermines a person’s right to bring a collateral challenge following an illegal public act. That is a point we will deal with more fully when we come to the third group of amendments.
Andy Slaughter
I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.
In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.
I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.
In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.
Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.
Sir John Hayes
The hon. Gentleman must know that only about 3% of these kinds of judicial review succeed, and that the huge number of them, 750 or so a year, are taking up enormous amounts of time. It would be good to have a debate in the House, perhaps even urgently, on the backlog of court cases, as then we can hear him say that he supports our attempt to clear that backlog. Why not have a debate about it on Monday? We can talk about why the Bill is so helpful in dealing with that problem.
Andy Slaughter
I am going to disappoint the right hon. Gentleman by not taking responsibility for this Government’s court backlog, which is continuing, in the Crown court at least, to grow and to which we have precious little solution at the moment. Nor am I going to put the burden of that on to this type of case. The reason why I am going through a few of these case summaries is to show, on their facts, that these are compelling cases.
The right hon. Gentleman could possibly have said 0.22%, which was the figure that the Government sought to rely on. That was a very low figure. I think he said 3.4%, but I think it is higher than that. I think this is a significant number of cases. I also think they are very compelling cases. He may not want to hear the facts of these cases, but to rebut that with the current Crown court backlog—I will put it politely, I think there is an element of non sequitur there. I do not want to get into a big debate about the MOJ’s finances, but I did mention that any extra money that has been put into the MOJ, or will be over the next three years, is a recognition of the ridiculous levels of cuts that have been made since 2010 and does not begin to address them
Sir John Hayes
But by definition, given the success rate, these changes will take out considerably more than 700 cases. That may create room for others, I do not deny that, but it is pretty hard for someone to argue that they want to free up more resources for the courts and then to argue against provisions that do just that.
Andy Slaughter
With respect, it is not. We are talking about a sum of between £300,000 and £400,000. I do not think that will make a material difference to the Crown court backlog. That is partly—mainly—a result of underfunding, but also of mismanagement by this and previous Governments since 2010. Those listening to the debate can make up their own mind about whether that was a sensible rebuttal of the type of cases that, as a result of getting rid of Cart judicial review, will no longer have a remedy—will no longer be able to come before the courts. It is not unique; it does happen and it can be justified, but it is a very serious step to engage an ouster clause. It is for the Government to make that case, and I am sure that, when I finish today, or when we resume next Tuesday, the Minister will try to make the case. To put the onus on the Opposition is, shall we say, chutzpah.
Let me, in the time I have left, go through perhaps just half a dozen cases. I do not want to take up Members’ time, but I do want to put these cases on the record, because I think that this type of case is exactly what we are dealing with and when one hears about the victims and the potential litigants in Cart reviews, that makes a difference to how we regard them.
Jared is a Tamil who had supported the Liberation Tigers of Tamil Eelam as a teenager and was tortured by the Sri Lankan state as a result. His body was covered in more than 100 scars typical of torture methods used by the regime. Despite that, and a country expert report, his appeal was dismissed. Despite his trauma and the risk that he faced on return, he was detained pending removal. He lodged a Cart judicial review challenging how the tribunal had treated the expert evidence supplied in his case. The case was successful before the Court of Appeal, and he was then recognised as a refugee. It was accepted by the Court that he would have been at real risk of further torture and persecution if returned.
SR, a Sri Lankan national, feared persecution, in part because of his involvement in diaspora activities in the UK. His appeal was dismissed by the first-tier tribunal, and he was refused permission to appeal. Following his application for a Cart judicial review, the refusal of permission to appeal was quashed on the grounds that the first-tier tribunal had failed to consider the evidence of the applicant’s diaspora activities in the UK and whether, in light of the evidence and the arguable change in conditions in Sri Lanka since 2013 when the upper tribunal had given country guidance, he would be at risk on return. The upper tribunal found that the first-tier tribunal had made an error of law and decided to hear the case to give new guidance on risk on return for those involved in diaspora activities. Before the hearing in the upper tribunal, the Home Office conceded the appeal, accepting that SR was a refugee. Without the possibility of a Cart judicial review, SR could have been sent to Sri Lanka, where he had a well-founded fear of persecution.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Fifth sitting)
John Hayes ExcerptsTuesday 9th November 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
Tom Hunt
The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.
I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.
Sir John Hayes (South Holland and The Deepings) (Con)
I am inspired to speak to this part in our consideration, partly by the Minister’s eloquent explanation of why the amendments are undesirable, partly by the wise words of my hon. Friend the Member for Ipswich on how the traditional system is in a way being besmirched by the gaming of it, in particular in immigration cases, and partly because of the delight of serving under your chairmanship, Mr Rosindell, which I have not done often, but am particularly pleased to do, under the watchful gaze of one of my political heroes, Joe Chamberlain, who began life as a radical and ended it as a member of a Tory Government, understanding, as you and I do, that liberalism is the triumph of frenzied licence over dutiful obligation. It is because of obligation and, in the spirit of Chamberlain, our patriotic respect for our constitution that we must resist the amendments.
To hear some critics of the Bill, one might think that the Cart was embedded in the settlement between Parliament and the courts, and yet it is a modern thing. As you know, Mr Rosindell, it is the product of a decision by the Supreme Court as recently as 2011, when it declared that the High Court could judicially review decisions of the upper tribunal to refuse permission to appeal from the first-tier tribunal, whereas previously it was held that it could not.
At the heart of our consideration of the Bill is a fundamental difference about the character of our belief in the character of judicial review, but also a difference in our understanding of the separation of powers. We saw that in our evidence sessions. We had evidence from academics, notably Professor Ekins who, by the way, authored the report by Policy Exchange—which I commend for its excellent work on this subject. He was very clear that some of the recent decisions by the Supreme Court and other parts of the court system have challenged the supremacy of Parliament.
We also heard from Aidan O’Neill, who said he was a constitutional lawyer, and I understand he is—quite a notable one, from what I read. He said that this was about mutual respect, but mutuality is not the basis of our constitutional settlement. The roles of Parliament and the courts are distinct—the separation of powers; the clue is in the name. Of course there is a relationship between them, because this place makes laws and the courts oversee laws, but judge-made law is not consistent with our constitutional settlement and some of the perverse decisions of the courts in recent years have led, in the words of Professor Ekins, to parliamentary sovereignty being openly questioned. He said:
“Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think”.—[Official Report, Judicial Review and Courts Public Bill Committee,2 November 2021; c15, Q9.]
The defence of the rule of law is not a valid one, as the Attorney General made clear in her speech on these matters very recently.
The issue before us in respect of these amendments is clear. The judgment that was made in 2011 opened a new avenue of judicial review and those Cart judicial review cases have mushroomed since. This is particularly true for immigration cases, as my hon. Friend the Member for Ipswich said a few moments ago—not exclusively so, as the Minister pointed out, but largely. This has to be changed. Given that a previous Labour Government tried to tighten the requirements for judicial review, it is surprising that the current Opposition do not understand that this is a return to a stable and steady position—a normal position—that enshrines judicial review as an important part of the way in which citizens can acquire justice, but does not allow it to become what it has become, a means for people to perpetuate political debates that they have lost earlier. This is using the courts to—I never thought we would be speaking so much about fruit during the course of our deliberations, but to use the word that has been used several times before—have many bites of the cherry. We ought perhaps to think about another fruit, just for the sake of variety, but I suppose cherries will do for the sake of argument.
As I pointed out when we last met, the Opposition were going to have a debate yesterday on the court backlog. The amendments seem to me to have the effect of doing the very opposite and do not address the issue of the court backlog. We know that a very small number of cases that are brought under Cart judicial review—something like 3%—are successful, and yet there were around 750 per year between 2026 and 2019. We have many cases being brought on a wing and a prayer, with neither the wing flying nor the prayer being answered in terms of the result of the case. There is a pressing need, just on those practical terms, to reform judicial review in this respect.
I say to the Minister—not provocatively, but I hope helpfully—that I think the Bill can go much further. I think it is a very modest reform of judicial review. I refer him again to Professor Ekins’s work. There is a good argument for changing the rules of evidence, for example, which would tighten the system considerably. There is a good case for dealing with the effects of the Adams case, the Miller case and the privacy case, which he will know had profound effects on judicial review and on the balance between Parliament and the courts.
Andy Slaughter
We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.
As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?
Sir John Hayes
I do not want to prolong the hon. Gentleman’s peroration except to say that a third argument has been made, which relates to the integrity of judicial review per se. When only 3% of Cart cases are successful—20-odd cases out of 750—the very integrity of the system is undermined. Notwithstanding the backlog, surely he accepts that it is important that we reform something that is clearly going badly wrong.
Andy Slaughter
I do not accept that as a separate point. I understand that that has been the thrust of the right hon. Gentleman’s argument in Committee, but it is a criticism of his own Government rather than my approach. In my view, the Bill does not go far enough and does not approach judicial review in sufficiently robust or constitutional terms; rather, it is taking what we have described as a tit-for-tat approach. However, we are where we are with the Bill. That is a matter that he must take up with his own side. I will talk about the 5%, but I do not want to say any more about the backlog. It is an incredibly important issue, and I look forward to the debate on that resuming, but frankly it is irrelevant to our proceedings, and it is a stretch to introduce it.
On the matter of cherries, this has been characterised as simply an immigration matter. Most Cart judicial reviews are of immigration cases; that is important in terms of the consequences, but it is not solely about those cases. If one listened to what Government Back Benchers say, one would think it was solely about that, but as has been said several times, Cart was not an immigration case. This form of judicial review applies to upper tribunal cases, regardless of whether they are immigration cases. That needs to be on the record.
I was looking yesterday at written evidence from Justice on the cherry point—other Members may have seen it as well. It is brief so I will read it, because Justice puts in better than I could, and I think we probably need to take this head on. Justice says:
“Cart JRs are not about having a ‘third bite at the cherry.’ There is also an important wider public interest at stake. Cart JRs prevent the UT from becoming insulated from review, by ensuring that there is a means by which errors of law, which could have very significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Philips said, Cart JRs ‘guard against the risk that errors of law of real significance slip through the system’. UT judges are specialists in their field, however as Lady Hale recognised ‘no-one is infallible’. Cart JRs mitigate against the risk of erroneous or outmoded constructions being perpetuated within the tribunals system, with the UT continuing to follow erroneous precedent that itself, or a higher court has set.
The Cart JR cases that succeed will involve either (i) an important point of principle or practice, which would not otherwise be considered; or (ii) some other compelling reason, such as a wholesale collapse of fair procedure. These are the second-tier appeals conditions that were set as a threshold by the Supreme Court in Cart, and are now in the Civil Procedure Rules, for a Cart JR to be considered. The Supreme Court sought to address the most significant injustices while making efficient use of judicial resources. It was in fact the Supreme Court’s intention that few Cart JRs would be successful, but those that were would be the most egregious and important cases with serious errors of law.
Due to the second-tier appeals conditions, Cart JRs involve only the most serious errors of law. If a Cart JR is successful, it will mean that the applicant had not been given a lawful ‘proper first bite of the cherry’ in appealing a decision to the FTT, and the UT had unlawfully refused permission to appeal the unlawfulness. Cart JRs also do not in any way determine the claimant’s substantive case, or whether the claimant should be allowed permission to appeal—this is for the UT to decide following a successful Cart JR.
It is also wrong and, as described by Lady Hale in Cart, a ‘constitutional solecism’ that since Parliament designated the UT as a ‘superior court of record’ Parliament excluded any possibility of judicial review. The decision in Cart did not involve the interpretation of any statutory provision that could be described as an ouster clause, and statutorily designating a body as a superior court of record, as Laws L.J. pointed out at first instance, ‘says nothing on its face about judicial review’.”
That is all I want to say about cherries this morning, but I think we have been led into the orchard erroneously on that point.
The Minister quoted one or two Supreme Court members. I could quote a number in aid of my submissions, but I will limit myself to three different types of advocate who would not always support Cart cases specifically. One, whom I think I mentioned on Second Reading, is Lord Neuberger, a former President of the Supreme Court. He said only a couple of weeks ago that it is “always worth remembering” that judicial review
“is what ensures that the executive arm of government keeps to the law and that individual rights are protected. Ouster clauses, for example, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity.”
One of our witnesses was Professor Feldman, who gave a balanced account of his view of the Bill. He said during our evidence session on this matter that
“I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 25, Q24.]
Anne McLaughlin
I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.
There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.
Sir John Hayes
I wonder whether the hon. Lady will provide some clarity about the parameters within which she believes the system should work. Presumably, she cannot be saying that there should be unlimited rights of appeal. She cannot be saying that there should be no structure around how people can access courts and use them. She cannot be saying that every person who arrives in Britain should be able to appeal again and again. There must be some limits, some parameters, some rules and some grounds. What are they?
Anne McLaughlin
We have them already. I am perfectly happy with what is in place. It is the right hon. Gentleman’s Government who seek to change that and take away people’s access to justice. It is not me who is trying to change it. I am the one trying to stop them changing it and taking away people’s rights.
I will tell the Committee about another case. The claimant was in a relationship with a British citizen, and they had two children who were also British citizens, but the claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review—the thing that Government Members want to take away from these people—the decision was overturned. The upper tribunal allowed the appeal under article 8. However, without the Cart judicial review, the family would have been separated.
The final person I want to talk about, from the Public Law Project’s evidence, is a Sri Lankan national who feared persecution, partly because of his involvement in diaspora activities in the UK. His perception was that he would be viewed as someone who was seeking to destabilise the integrity of Sri Lanka. It was argued that the first-tier tribunal judge had acted procedurally unfairly in refusing to consider all the evidence, including valuable video evidence, when deciding that the appellant was not actively involved in diaspora activities as claimed. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but was finally granted on appeal, where it was considered that there were legal and compelling reasons for granting permission. An order was made quashing the upper tribunal refusing permission.
Sir John Hayes
I wonder whether the hon. Lady will give me one more bite of the cherry.
Anne McLaughlin
I will finish this story. Before the hearing in the upper tribunal, the Home Office conceded the appeal and accepted that the appellant was a refugee. If Cart had not been an option, that man would have faced deportation and almost certain persecution. Having lived and worked in Sri Lanka, and having kept in touch with many people there and many Sri Lankans living here, I can tell Members that that man almost certainly would not still be here had he been deported and denied access to Cart judicial review—the thing the right hon. Gentleman wants to take away. I will let him come in and explain that.
Sir John Hayes
But 97% of these cases fail, and they fail on the grounds that the hon. Lady says she supports—she supports the existing system, as she made clear in her answer to my previous intervention. Given that she supports the existing system, and 97% of these cases fail, does she not recognise that something is going badly wrong?
When cases fail in respect of immigration, does she support the rapid deportation of people who have been through the system, sometimes more than once, and failed and had their case found to be wanting? Does she want those people who are found to be acting illegally to be deported, as we all do?
Sir John Hayes
I said 97% of cases fail. When they fail, those people have exhausted the legal avenues that the hon. Lady says she supports—the current system, criteria and means by which people can make their case. When immigration cases fail, does she support the speedy deportation of those people?
Anne McLaughlin
On the issue of 97% of the cases failing, if the decision-making processes at the beginning of the claim were better, we would not have all those people going through the tribunal system. I absolutely support improving the capacity and decision-making process in the Home Office.
Sir John Hayes
On a point of fact, could the hon. Lady tell us how many Cart cases are brought by disabled people?
Anne McLaughlin
Strangely enough, no I cannot. Can the right hon. Gentleman tell us?
Sir John Hayes
The hon. Lady must know that over 90% of Cart cases are immigration cases, although it is possible that some of those people might themselves be disabled. If she then takes the fewer than 10% of cases that are not immigration cases, a small minority of those will be of the kind she is describing. Of course, the hon. Lady is right that when disabled people are disadvantaged and need recourse to law, they should have it. However, the idea that she is promulgating—that somehow the Government are acting in a way that is disadvantageous to significant numbers of disabled people in the way she is suggesting—is not only inaccurate but irresponsible.
Anne McLaughlin
I do not think I suggested that there were huge numbers of cases of people with disabilities. What I said was that there are huge numbers of people with disabilities and huge numbers of people who could have disabilities in the future, and that they will be denied access to justice if they do not get justice first time around. That happens so often.
Anne McLaughlin
I am very pleased to hear that the right hon. Member has given up. Feel free to intervene again. [Interruption.] I will say that, from a sedentary position, he says that there are none so blind as those who will not see.
Anne McLaughlin
The right hon. Member can quote scripture at me all he likes. If we are going to talk about scripture, then we are going to talk about Christianity, which is surely about compassion. To say that it does not matter that this will affect people with disabilities because there are not that many of them who will be affected is just wrong.
Anne McLaughlin
That is what he implied. Anyway, I wanted to move on to ouster clauses.
Ouster clauses put decisions beyond the reach of the court. Despite the Government backing down after an outcry on proposals to include them in the Bill, they said:
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
I agree with Amnesty’s proposition that the Government are explicitly using it as a test run for ouster clauses, and that it is a blatant and disturbing attempt to get rid of judicial oversight in other policy areas. As it also says, “The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and separation of powers.”
I suggest that we heed the warning of the Law Society of England and Wales that, “It is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy.” They do not say anywhere, but there are not many of them, so let us not worry about it.
Judicial review may be inconvenient for the Government at times, but that is no justification for its removal. The implications of the Bill could be far-reaching, given the legal framework and its potential future use. The Bingham Centre for the Rule of Law, which I hope Members respect, said, “it is reasonable to say that ouster clauses are at odds with the rule of law.”
Finally, last week, in reference to the now former MP about whom the Standards Committee produced a report—I think all Members know what I am talking about—the Leader of the House said:
“It is not for me to judge him—others have done that—but was the process a fair one?”—[Official Report, 3 November 2021; Vol. 702, c. 938.]
That is the crux of judicial review. If the Government believe that we do not need access to Cart judicial review, did those who used it to win and get justice—such as the Venezuelan man fleeing for his life, the child requiring lifesaving treatment or the family who could finally be together—not require it, or were they not worth it?
Nick Fletcher
I thank the hon. Gentleman for his intervention but I believe, in all fairness, that he has reiterated what I said before, and my reply would be exactly the same. How many times do we have to keep coming back to this? It is the same thing. It is about the majority of immigration cases. We seem to be batting back and forth with this, but Opposition Members are not coming up with the answers that I am asking for, either.
Sir John Hayes
The reforms that we are arguing for are to restore the system that prevailed throughout the lifetime of the previous Labour Government. This change happened in 2011. If Opposition Members are so exercised about the need for the system to be as has prevailed in the past few years, why did they do nothing about it in the long period they had in government, when they presumably felt that the system that we are now trying to restore was perfectly adequate?
Nick Fletcher
I thank my right hon. Friend for that, but I want to move on because I am conscious of time.
I do understand that these people that are coming over here are leaving places that are in a terrible state and what they are leaving is sometimes awful, and I do have full sympathy for that, but there is a legal way of entering this country, and I believe that everyone should take the legal way into this country. When people get into these small dinghies they know they are entering our country illegally. If they are entering our country illegally, then they must have to deal with the consequences that go with that.
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.
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.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Sixth sitting)
John Hayes ExcerptsTuesday 9th November 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 9 November 2021 - (9 Nov 2021)
Alex Cunningham
I thank Justice and Fair Trials again for their helpful input into these amendments. As a set, the amendments all deal with the need for safeguards in the procedure—we know the procedure that we are referring to—both by identifying possible issues before the procedure is used and by building in safeguards to the procedure itself. The Minister may think that he has covered the bases, but I want to help him to ensure that the belt and braces are in place, to best support justice.
Amendment 46 would mandate the Secretary of State to publish assessments on the impact of clause 3, before its commencement, on individuals with protected characteristics as defined in the Equality Act 2010, as well as on those with vulnerabilities. I have just spoken at length about amendment 45 and the need for the provisions in clause 3 to be well evidenced before they are implemented; amendment 46 addresses that point further. I am aware of the equalities impact statement, published alongside the Bill, which states that, in relation to the criminal procedures section of the Bill:
“we do not expect these changes to have a negative impact on any particular group, as the majority of these measures are designed to make the criminal court process easier for all court users by offering additional ways in which people can engage with the court that will significantly improve user experience and reduce user costs.”
Some may think that that’s all right then, but it certainly is not. The Government’s equality impact assessment deals with the impact of the procedure in two paragraphs and only discusses issues relating to income levels. However, there is evidence, predominantly from the single justice procedure, that suggests that the new procedure may disproportionately impact individuals with protected characteristics.
Stephanie Needleman, the acting legal director of Justice, shared such concerns with the Committee in the evidence session last week. She mentioned women as a group of concern, as the existing single justice procedure disproportionately targets women. APPEAL’s Women Justice Initiative notes,
“the vast majority of those being prosecuted and convicted of TV licence evasion are women.”
Its research shows what can happen in the absence of sufficient safeguards, with women facing criminal records despite not having received a letter, or where the letter was sent to the wrong address. Although there are issues that can affect anyone who receives a postal charge, the fact that women are more likely to commit certain so-called low-level offences means they are impacted to a greater extent. The Government’s impact assessment does not recognise that, and therefore does not suggest anything to address the issue. It is important that this disparity is recognised and is not replicated in this procedure. Stephanie Needleman he also raised concern about the potential impact on disproportionate representation of ethnic minorities in the criminal justice system, particularly as the new procedure has such minimal safeguarding built in.
The Opposition believe it is vital that further research is done to ensure that disproportionate numbers of ethnic minority individuals are not unduly criminalised through procedures that contain weaker safeguards than are currently provisioned under the single justice procedure. We are also concerned that the impact assessment makes no attempt to look at whether the new procedure will have a disproportionate impact on neurodivergent individuals or others living with mental health conditions and other disabilities. Justice’s report “Mental Health and Fair Trial” notes that criminal justice processes often do not account for an individual’s particular needs, which may hamper their ability to understand what is happening. This concern is then amplified within the single justice procedure where there is lack of opportunity to screen for health conditions or vulnerabilities and assess whether the process is suitable.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Gentleman is making a compelling case. I agree with a lot of what he says and I know the Minister will too, because he has been very sensible about the need to review this and consider it carefully before it is extended. In addition to the groups that the hon. Gentleman identifies, there are simply older people—people who do not have the wherewithal to navigate systems. They may not be people with mental health issues, although I take the point about that. They may simply be people who are not comfortable with online transactions. I would rather see far fewer things put online, by the way—I would like a move in the opposite direction in life and in the provision of public services generally, but the hon. Gentleman is not pressing for that; I am far more radical than him, I can tell. I hope he would include in his assessment, and I hope the Minister will too, those people who may simply struggle with online services.
Alex Cunningham
The right hon. Gentleman makes my case for me. I am most grateful to him. My dad is 90 and my mother is 88; she sadly has dementia but my dad still looks after her. As someone who is on the ball, I think he would really struggle in this sort of situation. I would not want that.
I am encouraged by the Minister’s very positive response to the first amendment. I am sure he is moving in my direction and I am very grateful. Perhaps when we come to a vote, the right hon. Gentleman will join me in saying, “Aye!” at the appropriate moment.
Alex Cunningham
Some might say he had gone a long time ago.
We are worried that the issue will only be further exacerbated by the new procedure, with the removal of any form of human oversight and involvement in the process at all. As I said in my earlier speech, the new process may represent a significant shift in our justice system as we look to increase the use of technology to maximise efficiency, but it is important that we do not take the step without knowing what it will entail for all types of defendants and place appropriate mitigations in place. The Government’s assessment further states:
“However, as is the case more generally across England and Wales, there is over-representation of certain people in the criminal justice system with protected characteristics”,
which will affect some of the proposed measures.
It sounds to me like the Government are simply accepting disproportionality as an inevitable consequence of our criminal justice system. That is simply not good enough, and that is why we want the Minister to go further with all these protections. It is also why the Opposition would like to see a more detailed equality impact assessment of clause 3 before it is commenced, as that will allow the Government to address the issues now rather than waiting until disproportionality is further exacerbated—when they say that they are committed to reducing it.
Sir John Hayes
I do not want to delay the Minister because I am keen to get on myself, but the point really is not so much the test of convenience, which is the one he is describing, or even the test of accessibility; it is more the absence of personal interaction. The problem with moving to technologically based systems, across the private and public sectors, is that we take people out of the equation, and actually people are the cleverest thing we have. They have imagination and intuition, and sensitivity and understanding. When we systemise things, we risk losing all those virtues. By the way, long before I came here, I was in the information technology industry, so I remember well knowing that then, just as I know it now.
James Cartlidge
My right hon. Friend makes a good point. There are some things that should always be done in person. A good example is parliamentary debates because we need interventions. When we had people appearing on a television screen, unable to intervene, how could we hold them to account for what they said? However, in the legal system—the Bill underscores this—some things must be done in person, and in respect of which the resource is so precious. Of course, we are talking particularly about trials in the Crown court, which are the most serious cases. A huge part of our focus is digitising relatively—I say that word carefully—straightforward or less serious procedures, so that we maximise at every turn the physical, in-person resource for the most important proceedings. That is important.
Before turning to the amendments, I will make one further point on the position of vulnerable defendants and give slightly more information, because this is a fair point. The procedure will operate in a similar way to the current written charge and requisition procedure, and the single justice procedure. Prosecutors using those methods of initiating proceedings have developed procedures for identifying those who may need additional support. Support channels will also be available to users who require clarification of information and processes ranging from web chat or telephone assistance to more intensive face-to-face assistance. The Department has recently awarded a new contract for significant support in that area, and I am happy to provide more information later.
Amendment 46 would require the Government to publish an equalities and impact assessment before the commencement of clause 3. When the Bill was introduced, an equalities assessment and an impact assessment were published on all the measures, including the new automatic online procedure. As such, we have already given consideration to the impact that the measure could have on those with vulnerabilities and protected characteristics, as the hon. Member for Lewisham East mentioned. We have recognised that the steps we are taking to digitalise criminal court procedures have the potential to affect groups that are less digitally enabled. That is why we will ensure that the online processes are easy to follow and understand, and that support channels, ranging from web chat or telephone assistance to more intensive face-to-face assistance, will be available to all defendants who might need them, as I said earlier.
The new procedure is completely optional, and it will remain the defendant’s choice whether they wish to proceed with automatic online conviction or opt for a traditional hearing in court. The number of disabled people using the internet is increasing, and defendants with certain disabilities might in fact welcome the introduction of a new online procedure, which will reduce their need to travel to court unnecessarily and enable them to resolve their case quickly in the comfort of their own home. As I say, the new procedure can improve access to justice in some respects. I agree that it is important to monitor its impact, including on those with vulnerabilities, and we will do so on the three offences initially before we consider whether to extend the procedure further.
Amendment 57 would require all defendants charged with an eligible offence to submit to an assessment of their physical and mental health before a prosecutor could decide whether it would be appropriate to offer them the option to proceed with the new automatic online procedure. The hon. Member for Stockton North made a reasonable case, and I share his concerns that the new procedure should only be used appropriately—that word is so important. As I think I said on Second Reading in my summing up, I am someone who is I would not quite say evangelical about, but strongly supportive of, using the internet to create efficiencies, improve access, increase productivity and ensure all those benefits; nevertheless, we have to have safeguards.
As I have already set out, that is why we have built a number of safeguards into clause 3. For example, a prosecutor will offer this online option to a defendant only once they have considered all the facts of a case and deemed it suitable for the procedure. All the options will be explained clearly to defendants offered the procedure, including their right to come to court if they wish to and the potential consequences of their choosing this route. Defendants who decide to opt into the new procedure will be guided through the process, and will have access to both telephone support and face-to-face support if they should need them.
Clause 3 also provides the court with the power to set aside a conviction in the event that the defendant did not understand the consequences of their decision to accept the conviction. The effect of the amendment may be to deter some people from using a procedure whose speed and simplicity they would otherwise welcome. Indeed, there would be no reason for defendants to opt for the new procedure if the resolution of their case would be swifter under existing procedures, such as the single justice procedure, where no mental or health assessment is required.
Amendment 47 would place an additional duty on the Secretary of State to publish statutory guidance before clause 3 could be commenced. As proposed, this would be guidance setting out how prosecutors should provide and explain to defendants any information in the required documents. Clause 3 already provides for guidance under the criminal procedure rules to set out the detail of how required documents should be served on a defendant offered the new automatic online procedure.
As I have said, under the procedure defendants will be provided with all the information they need to make an informed decision, and that will be written in a clear and accessible way. The information will include details of the evidence against them, the potential consequences of choosing this route and full details of the prospective fine. Similar information is already provided on the single justice procedure notice currently sent out to defendants, which is drafted and regularly reviewed in consultation with a wide range of user groups.
If it is helpful, I will be more than happy to provide every member of this Bill Committee, either by email or even through the post if necessary, a sample of the single justice procedure, to show how it looks. I think that once members see it, they will agree that it is very clear. It is similar to what will be used in the new procedure.
Amendment 47 would require all defendants to have engaged a legal representative before a prosecutor could offer them the option to proceed with the new automatic online procedure. I stress that only summary-only, non-imprisonable offences that are straightforward and simple to prove will be eligible for the new procedure. As such, we intend the design of the procedure to be simple enough to ensure that it can be used without legal assistance.
Defendants would need to opt in actively to the procedure and could choose at any point prior to accepting the conviction to have their case heard in court instead—when they wish to plead not guilty or want the court to consider mitigating factors, for instance.
Amendment 47 is unnecessary and would contradict current practice where, generally speaking, cases of this type do not normally attract legal aid and the vast majority of defendants already represent themselves, whether under the single justice procedure or in court. That is an important point to stress—[Interruption.]
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Seventh sitting)
John Hayes ExcerptsTuesday 16th November 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 November 2021 - (16 Nov 2021)
James Cartlidge
The hon. Gentleman has asked some very good questions. I accept that these are important points, so let me try to clarify some of them.
The hon. Gentleman asked about the statistics. We do not have precise data on failure to appear, and particularly about prediction of failure to appear in the context of these powers. The majority of defendants prosecuted for triable either-way offences who are sent to Crown court for jury trial are sent there by a magistrates court, rather than by the defendant electing. In 2019, magistrates courts sent 32,262 defendants to the Crown court for a jury trial; of those they decided not to send, 5,277 defendants elected for their case to be sent to be tried by a jury at the Crown court.
In 2019, of the 250,387 adult defendants scheduled to appear at magistrates court for a triable either-way offence, 41,968 defendants had a recorded outcome of failing to appear. However, as the hon. Gentleman will appreciate, it is extremely difficult to predict how this clause will affect those figures. Regarding the circumstances in which the decision could be revisited, to be clear, where a defendant has no knowledge of the proceedings brought against them through a summons or requisition until after a magistrates court has begun to try the case, they will be able to make a statutory declaration and restart the proceedings from the beginning, providing adults with another opportunity to elect for a jury trial.
The hon. Gentleman has tabled amendments 80, 81 and 82 in order to ensure that adult defendants are given the opportunity to provide a reason why they are not attending an allocation hearing, and to avoid the courts speculating as to what that reason might be. Amendment 83 would extend the same opportunity to children. The whole point of clause 9 is to give the courts powers to deal with defendants who deliberately delay proceedings and try to evade justice in a wider range of circumstances. These amendments would achieve the opposite by preventing the court from progressing cases in the absence of any communication from the defendant who has not attended. If no reason is given for the court to consider, the case simply cannot progress.
Sir John Hayes (South Holland and The Deepings) (Con)
I listened to the Opposition spokesman, and it seemed to me that he made a persuasive case. However, a few moments ago, the Minister introduced an important addition to this discussion in the form of a safeguard. He said very clearly that the accused could restart the whole process if they were not aware of the circumstances, so it seems to me that the people the Minister is describing who are malevolent or malign—who are deliberately trying to frustrate justice—will be caught by this clause, but those who are not will be protected by the safeguard. Perhaps the Minister should amplify or accentuate that safeguard, because it seems to be exactly what the Opposition spokesman was asking for.
James Cartlidge
My right hon. Friend, who is an expert on amplification, makes an excellent point. He is entirely right: there are safeguards—as with any safeguards, they are there to protect those who have been subject to inadvertent circumstances. They are not there to allow those who have deliberately avoided justice to do so: that distinction is absolutely crystal clear and important. My right hon. Friend has hit the nail on the head, as it were.
James Cartlidge
The amendment would prevent clause 9 from applying to cases involving children. I do not have those statistics to hand, but I will see if I can endeavour to find them for the hon. Gentleman.
I want to start by acknowledging the hon. Gentleman’s concerns about the application of the clause when it comes to children. As I said before, I recognise the sensitivities here, which is why we have emphasised safeguards, and I fully agree that it is vitally important that we protect the interests of children in the criminal justice system.
Subsection (4), which the hon. Gentleman proposes to remove, has been specifically drafted for children. It takes into consideration that defendants under the age of 18 have an extremely limited role to play when it comes to allocation hearings, given that they do not have the same rights as adults to elect for a jury trial at the crown court. It recognises children’s increased vulnerability in the criminal justice system and provides additional safeguards. For example, the additional new circumstances that will enable the allocation of children’s cases in their absence are far more limited than those provided for adults. In addition to the existing exception of disorderly conduct, the clause specifies that the court can only proceed to allocate in a child’s absence where the child has been invited, but failed, to provide an online indication of plea and either the court is satisfied they were served with a notice of the hearing or the child has already appeared at court on a previous occasion to answer the charge. The court must consider whether there is an acceptable reason for the child’s absence and must be satisfied it would not be contrary to the interests of justice for the hearing to proceed in the child’s absence.
The provision must be viewed in the context of existing safeguards in primary legislation. When a child is arrested and held in police detention, the law requires that a parent or guardian must be notified as soon as possible. If a summons and postal requisition is served, it will always be sent to their parent or guardian. When the case is then brought before a youth court, the law will continue to enable the court to require a parent or guardian to attend during all stages of the subsequent proceedings where that is deemed appropriate.
Sir John Hayes
There are concerns about children in care. Again, the Minister makes a compelling case about the role of parents and guardians in respect of the clause and the amendment. However, many Members recognise that sometimes children in care are in very difficult circumstances. What provision will there be for those children and what consideration has the Minister given to their plight in those circumstances?
James Cartlidge
My right hon. Friend makes a very good point. It is difficult to have specific clauses for children in care in that sense, but I will give consideration to that important point and provide him with further information.
Courts also have a statutory duty to have regard to the welfare of children. They will always have the discretion as to whether to proceed to allocate in a child’s absence. We recognise that in the majority of cases, the courts may not deem it appropriate to proceed if a child is absent from the plea and allocation hearing. However, the clause provides the court with an important means of progressing a case involving a child where it is in the interests of justice to do so. I therefore urge the hon. Member for Stockton North to withdraw the amendment.
Alex Cunningham
I am grateful to the right hon. Member for South Holland and The Deepings for raising the issue of looked-after children. He helps to illustrate further why subsection (4) is inappropriate and why we support its removal. The Minister talked about the court being satisfied that notice has been served on the child. I am not sure how the court determines that, because children can always spirit things away and parents do not always find out until much later down the process.
Sir John Hayes
I am grateful for the hon. Gentleman’s remarks, but I took from what the Minister said that he is going to go away and think about that. When a combination of a diligent Opposition and a brave Government Back Bencher raises an issue and the Minister has given—I will not say concession—that acknowledgement, the wise thing for an Opposition to do is to take that as a win and withdraw their amendment.
Alex Cunningham
I think the right hon. Gentleman almost makes my argument for me. The Minister does not actually know how the subsection will apply to a particularly vulnerable group of young people, those in care. Perhaps it is the Minister who should support the amendment.
James Cartlidge
To be fair to the hon. Gentleman, he is being entirely consistent. He will appreciate that it would be odd and inconsistent if we were to keep the other clauses and remove this clause, given that it has safeguards in relation to those clauses. Notwithstanding the fact that he has some overarching concerns, he will appreciate that it would be odd for us to remove it in those circumstances.
Sir John Hayes
I wish to add remarks similar to those I made about children in care. When the Minister sends a note, as he said he might, and gives this further consideration, perhaps he could also address this clause, as the same arguments I made earlier apply.
James Cartlidge
My right hon. Friend is correct; to be clear, this clause sits with the other clauses, as it contains safeguards relating to them. They are part and parcel of the same set. I will ensure that he receives the further information that he seeks.
Sir John Hayes
I am grateful to the Minister.
Question put, That the clause stand part of the Bill.
Sir John Hayes
I was delighted to hear that in his earlier life the Minister was a kind of Wemmick figure to Mr Jaggers before his expectations were even greater and he came here. His account of carrying papers around the courts perhaps prepared him for the immense amounts of paperwork that one deals with as a member of the Government, from my memory of it. However, I could not disagree with him more on this part of the Bill, for three reasons.
The first is accessibility. There are profound problems with moving what was previously a personal connection or a written connection with any organisation or body to an online one. It is particularly disadvantageous for vulnerable groups, including people with learning difficulties, people with mental health problems, people with particular disabilities such as hearing loss, and the unsighted. The hon. Member for Stockton North mentioned the elderly too, and the Minister acknowledged that point in respect of his own parents, who he said were not as switched on to these matters as he doubtless is.
There are other issues too, such as security and confidentiality. There is an immense myth. I know that from having been in the IT industry and having been Security Minister. The combination of those experiences taught me a long time ago that online procedures and processes are very hard to secure beyond doubt, so I have great doubts about whether confidentiality can be maintained as it can by more conventional means.
Fundamentally, my problem is one of community. We have to ask in what kind of place we want to live, and how we want to conduct our lives. That applies to our work in Parliament, to the exercise of the law, and to business, as the hon. Member for Stockton North said. Personal interaction and the intimacy associated with face-to-face engagement are critical to framing and affirming our sense of community and connection with others. The more remote and anonymous we make that engagement, the more we will undermine that sense of what we share, so I have profound doubts about the whole move to online government, as I mentioned earlier.
The Minister is being extremely adroit in his handling of the Committee; indeed, I sent him a note to say how deftly he handled my earlier inquiries. I do not mean to patronise him, but I think he can be very proud of his performance. I have been in that seat many times, as he knows, and I know how tough it is. However, when I raised these matters previously he suggested—slightly untypically and rather clumsily—that I was regressive. He must know that the very concept of progress is suspect, because believing in progress means believing in a destination—a pre-ordained destination towards which we are all hurtling.
In truth, of course, that is profoundly philosophically unsound. I can only assume that, standing there under those dreadful Whigs in Gladstone’s Cabinet, the Minister has adopted the Whig theory of history that we are all merely actors who are acting out a script written for us by some other power. There is nothing regressive about my remark; there is perhaps something human about it. I want more politics on a human scale; I want it to be safe, secure and accessible to all, and I want it to affirm our sense of community and build on what we share.
For all those reasons, I seek extremely profound reassurances from the Minister—of the kind that he has offered previously, in the spirit that I recommended a few moments ago—that my constituents, particularly the most vulnerable, will not be disadvantaged by the legislation. The hon. Member for Stockton North alluded to geography. Well, some people in rural areas such as South Holland and The Deepings are not yet “online”, and I am sure that that applies to constituencies represented by Members on both sides of the Committee. I do not want those people to be at a disadvantage.
The Minister is right that during the pandemic we had to make do, and that did have some beneficial effects: it forced us to think about how we could perhaps do things more efficiently. In the end, however, I was desperate to get back to the business of meeting my constituents face to face, and of debating and engaging in person with colleagues in Parliament. I am sure that that applies to most right hon. and hon. Members in this House. Let us not hurtle down the road to moving everything online, only to look back in years to come and think, “My goodness! What have we done and what have we lost?”
Andy Slaughter (Hammersmith) (Lab)
I shall be brief. I felt half invited by the Minister to respond, but I will not tell a whole war story from the courts, as we used to do on the Justice Committee. I commiserate with him for his treatment by the Royal Courts of Justice; it is nothing personal that the windows are being shut in his face.
I will shock the Committee again: I agree with the right hon. Member for South Holland and The Deepings. I am afraid that I am one of those people who still carries large amounts of paper around and cannot quite manage otherwise. That is possibly why it is good that I am not a practitioner any longer: the courts have adapted quite well to new technology—practitioners, the judiciary and the senior judiciary in particular are extremely adroit in that respect. I agree entirely with my hon. Friend the Member for Stockton North that we have in common with the Government the intention to ensure that things are done as efficiently, quickly and economically as possible. I entirely agree that new technology has a big role to play in all that.
The Committee may hear a “but” coming. The “but” is that there are several ways, but two in particular, in which we must be very wary. First, there is the issue of access. We have all had to learn to deal with new technology, and an example of that is how we advanced our ability to do so under the stresses of covid. Zooming is as common to us now as face-to-face meetings.
Sir John Hayes
It is a mark of both the sense and sensibility of the scrutiny of the Committee that the hon. Gentleman should be defending the Minister and the Government’s position from my mild but profound attack. It is a good Committee where that kind of communion, if I may put it that way, can be enjoyed.
Andy Slaughter
I am going to impress the right hon. Gentleman even more in a moment by making a 180° turn and joining his critique of the Minister.
There may well be times when Zooming is more efficient and appropriate, but there will be many times when face-to-face meetings are more appropriate, including meetings with constituents. During the long debates that we had on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I cautioned many times that it moved too quickly to exclude people from the system in the name of efficiency. There is a danger that we will do that here.
The Minister fairly said that we must proceed with caution and be aware of some people’s digital limitations. It is easy to say that, but it is more difficult to ensure that it happens, because the same people who struggle with matters online are those who cannot make their voices heard, and they just disappear from the system. We have excluded people even though it was not intentional.
A second important category—coroners—was touched on. I will not say much now because I expect that we shall come on to the plans to move those online when we come to that section. The Minister will remember that Mr Rebello, senior coroner for the Liverpool and Wirral coroner area and secretary of the Coroners Society, said that he liked to have everybody in the room. He was not saying that for its own sake, but because there are times, when evidence is being heard or judicial decisions are being made rather than in administrative hearings, when it is important for people to be present. Although doing things remotely may have been the best that we could do during covid, that will not always be the case.
I simply caution that if justice is to be properly done, we should be cautious before we throw out the methods that have served us not just for decades but for centuries in assessing the quality of evidence, in advocacy and in ensuring that we get to the best result we can in every case. I hope that we will be as modern and efficient as we can, and use as much technology as we can, but not at the price of excluding people or of not seeing justice done.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Eighth sitting)
John Hayes ExcerptsTuesday 16th November 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 16 November 2021 - (16 Nov 2021)
The Parliamentary Under-Secretary of State for Justice (James Cartlidge)
It is good to have you back in the Chair, Sir Mark. I hope that we will make diligent progress this afternoon.
As the hon. Member for Stockton North said, both amendments would provide options for a person to participate in a hearing via non-electronic means. Amendment 59 would give those participating the option, while amendment 90 would require someone who had a physical or mental condition preventing them from understanding or effectively participating in online proceedings to participate in a hearing via non-electronic means.
The online procedure rule committee will make simple and consistent rules that provide simple processes that can be followed by the average court user. We have seen an increase in online proceedings in response to the pandemic—I will say more on that when speaking to clause stand part. Her Majesty’s Courts and Tribunals Service is moving towards digital services being the default, but we absolutely understand that not everyone will choose to participate in a hearing by electronic means.
I will emphasise specific clauses. In many ways, it is a disappointment that my right hon. Friend the Member for South Holland and The Deepings is not here, because he would have been greatly reassured by the clauses. He has obviously struggled to get here for an in-person sitting—perhaps we could have held it online, but unfortunately that option is not available at the minute, which is a shame for my right hon. Friend. I have no doubt that he has a good reason for being absent.
Clause 18(6) states:
“Where Online Procedure Rules require a person—
(a) to initiate, conduct or progress proceedings by electronic means, or
(b) to participate in proceedings, other than a hearing, by electronic means,
Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
The key thing is that the rules reply entirely to civil cases—civil, family and tribunals. Those are the jurisdictions to which those particular rules apply. It is not obvious how there would be a situation where someone who had legal representation would not be able to participate online given that practitioners should, for obvious reasons, be able to participate online.
Furthermore, subsection (7) states:
“Where Online Procedure Rules require a person to participate in a hearing by electronic means, Online Procedure Rules must also provide that a court or tribunal may, on an application or of its own initiative, order or otherwise direct that person, or any other person, to participate by non-electronic means.”
Well—[Interruption.] My right hon. Friend has duly arrived, and I say to him that one of the downsides of physical sittings and in-person hearings is that one is subject to the whims of chronological events, to put it bluntly, and unfortunately he has missed a great bit of the Bill, which I read out not just for him but primarily because it is relevant to the amendments from the hon. Member for Stockton North, the Opposition spokesperson. The Bill shows that where one is represented, one would be able to request a physical or in-person hearing.
There could be a number of reasons why someone would chose to participate in a hearing by a means other than electronic. Her Majesty’s Courts and Tribunals Service provides a support service over the phone as well as more intensive face-to-face support for those who might require it, such as vulnerable users who might not otherwise be able to participate in proceedings effectively or those who are digitally excluded. HMCTS has also awarded a national contract to deliver positive and practical solutions to support users and break down the barrier of digital exclusion across civil, family and tribunal jurisdictions. Through this contract, support will be available in person and remotely through a network of delivery partners who are experienced in supporting users of justice services. As per the specification, the services will be delivered across different channels to ensure that all those who require them can access them. Those channels would include local-centre support in more than 300 physical sites, over-the-phone support, remote video appointments with those who have access but need support in navigating the service, and in-home face-to-face support with necessary equipment. HMCTS has considered forms of support that can be provided to the user throughout their online proceedings.
I recently visited Isleworth Crown court where the citizens advice bureau was actively involved in providing services to witnesses. It is conceivable that the physical roll-out of these support services could be provided on a sub-contracted basis by a range of organisations. The point is that that is precedented and it works to provide effective support on the ground to vulnerable users.
Most importantly, as I have said, the measures in the Bill also ensure that paper form will remain available for citizens participating in proceedings, so an offline option will always be available for those who need it, not least my right hon. Friend the Member for South Holland and The Deepings.
Sir John Hayes (South Holland and The Deepings) (Con)
I am delighted to have come hotfoot from a discussion with one of the people who gave evidence to the Committee, Professor Ekins, who shares my view that the Bill should be widened to deal with matters of parliamentary sovereignty and other issues. We were debating how the new clauses that stand in my name and those of my hon. Friends might be recast to ensure that they are in scope. On the point that my hon. Friend the Minister raises, the key is that the move to online should not be obligatory. Sir Mark, I was making the argument earlier, as were one or two others on the Committee, that vulnerable people, in particular, might struggle with a purely online system and that they needed some protection from the effects of a system that could become exclusively online. Is the Minister giving the reassurance, which would certainly satisfy me, that this will not be obligatory and that there will be an option for people who wish to do so to appear before a court in the traditional way and to make representations accordingly?
James Cartlidge
I am glad that the reason for my right hon. Friend’s delay was that he is so proactive he was working to amend earlier parts of the Bill, which we will presumably come to after all the other clauses. To allay his concerns and for his benefit, I will repeat the quote because I think it is important. Clause 18(6) states:
“Where Online Procedure Rules require a person—
(a) to initiate, conduct or progress proceedings by electronic means, or
(b) to participate in proceedings, other than a hearing, by electronic means,
Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”
To be clear, if a person is legally represented, there is no reason that a legal firm would not be able to participate electronically, and that is why the clause says
“if the person is not legally represented”.
I remind the Committee that those rules apply entirely to civil and family tribunals, not to criminal proceedings. That is a different part of the Bill. I hope that has reassured my right hon. Friend that there will always be choice.
As I have already stated in reference to previous amendments, there is a range of support in place. We have just set up a national contract which will deliver not only telephone and web-based support, but physical, in-person support, of the kind that we see in our courts and other physical locations around the country. There is a wide range of measures.
Sir John Hayes
I am extremely grateful to the Minister, both for giving way and for that assurance. He is right that our endeavour in the Bill is to increase efficiency, free up court time and make the system run more smoothly. I was discussing that with hon. Members earlier, and I share that view. My fear was that the most vulnerable of our countrymen might be disadvantaged, but my hon. Friend has reassured me that that will not be the case because the measures will not be obligatory. “There will always be choice” were his words. Let those words ring out in the Committee and assuage the fears that I articulated on behalf of the most needy.
James Cartlidge
I am grateful to my right hon. Friend. As a Conservative, he is, of course, a champion of choice at the forefront of public policy—
James Cartlidge
Of course—and the needy. They are both important. Given the safeguards in place and the fact that an offline option is already available, I do not think the amendments are necessary. I therefore urge the hon. Member for Stockton North to withdraw them.
James Cartlidge
When we meet to discuss the single justice procedure—a meeting that I was more than happy to agree to—we can talk about how we can look at things. There will obviously be ongoing reviews. It is important that we get this issue right—by ensuring that it has been through a tender, for example.
Sir John Hayes
We have teased out important things from this debate. Would the choice that my hon. Friend the Minister mentioned earlier apply to witnesses, too? I am thinking of a blind person who has heard something or a deaf person who has seen something that might provide vital evidence, both of whom would struggle with the conventional online model. Will provision will be made for them to exercise, as witnesses, the sort of choice that he described earlier?
James Cartlidge
I can absolutely confirm that to my right hon. Friend. At the moment, we are talking about civil cases; he is absolutely right that those people could be witnesses in those, of course.
I stress that the matter would be at the discretion of the courts, without a shadow of a doubt, but I think there will be far more cases of vulnerable witnesses where technology assists the process. The obvious example is section 28 proceedings, in which evidence can be recorded in advance of the actual in-person hearing; they have become a very important part of the justice system. The Secretary of State has set out his desire for them to be rolled out more broadly. In a way, my right hon. Friend makes the point for me: technology in such cases can be of great assistance, and we are applying it to intimidated witnesses as well.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings)Judicial Review and Courts Bill (Eleventh sitting)
John Hayes ExcerptsTuesday 23rd November 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 18 November 2021 - (18 Nov 2021)
Sir John Hayes (South Holland and The Deepings) (Con)
Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.
Marco Longhi (Dudley North) (Con)
Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.
As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.
The Chair
We now come to new clauses. I understand that the Opposition do not intend to press new clauses 1 and 2, which have already been debated, to a Division, so we will begin with new clause 3.
New Clause 3
Exclusion of review of the Investigatory Powers Tribunal
(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) Leave out subsection (8) and insert—
“(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.
(9) In particular—
(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and
(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.
(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—
(a) has a valid case before it;
(b) is or was properly constituted for the purpose of dealing with the case; and
(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.
(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.”
(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”—(Sir John Hayes.)
Brought up, and read the First time.
Sir John Hayes
I beg to move that the clause be read a Second time.
The new clause addresses the issue of the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000 and more especially circumventing the role of the Investigatory Powers Tribunal. It would restore Parliament’s choice in enacting section 67 of the Act so that the decisions of the Investigatory Powers Tribunal would not be subject to judicial review.
As Security Minister at the Home Office, I addressed these matters in an important piece of legislation that established the principle of a double lock in respect of the warranting of powers in the case of both suspected terrorists and serious and organised criminals. That is to say that tech companies are obliged to maintain a record of electronic communications that can be interrogated on application to the Home Secretary for a warrant. I introduced the double lock, so that as well as satisfying the Home Secretary of the validity of the case made by the police or the security services, a warrant must also pass the same test when put before a member of the Investigatory Powers Tribunal or a judge. That was a safeguard to ensure that those powers are used only when necessary and proportionate. It is that test of necessity and proportionality that lies at the heart of the exercise of powers in respect of security and related matters.
The problem—it is a challenge that we have considered on previous occasions in the scrutiny of the Bill: indeed, it has punctuated our consideration—is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in that context. The supremacy of Parliament is fundamental to protecting the interests of the people, and Parliament’s particular role in our constitutional settlement is not a matter—as was suggested by one of those who gave evidence to us—of mutuality.
Anybody who understands constitutional theory and practice will know of the work of A. V. Dicey. It is clear that parliamentary sovereignty, as Dicey argued, confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together, and therefore:
“The principle of Parliamentary sovereignty means neither more nor less than this”.
In Dicey’s words, Parliament has
“the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament.”
Those are the words of A. V. Dicey in affirming the principle of sovereignty. He goes on to say that parliamentary sovereignty must be thus described:
“Any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies existing law, will be obeyed by the courts…Some apparent exceptions to this rule no doubt suggest themselves. But these apparent exceptions, as where, for example, the Judges of the High Court of Justice make rules of court repealing Parliamentary enactments, are resolvable into cases in which Parliament either directly or indirectly sanctions subordinate legislation.”
Legally, sovereign power is assuredly maintained by Parliament. It is quite wrong for the courts to be used as a way to perpetuate debate. We heard that from the Minister in particular respect of the way that judicial review has metamorphosised over time to perpetuate debate in particular cases that have been settled previously. The Minister described it as having several bites of the cherry. That is not the role of judicial process, and the Bill goes a considerable way to addressing that, but it does not go far enough.
The purpose of the new clause is to probe and press the Minister—I will not put it more strongly than that—to go further in affirming the sovereign role of Parliament described by A. V. Dicey. The power of Parliament has been drawn into question, particularly in respect of the Investigatory Powers Tribunal, as I said. The Supreme Court, in a perverse judgment, effectively set aside Parliament’s lawmaking choice in May 2019 in the landmark judgment of Privacy International v. Investigatory Powers Tribunal. Hon. Members will remember that the case was raised in the first oral evidence session by Professor Ekins, and addressed by him in his paper for Policy Exchange. I once again thank Policy Exchange for publishing that paper, which has added to our understanding of and insight into these matters.
In essence, the new clause, tabled in my name and that of my hon. Friend the Member for Ipswich, and supported by other Committee members—I say that with some timidity and hesitation, because I cannot presuppose that support until I have persuaded them by the power of my oratory; none the less, I am confident that it has some sympathy of other Committee members—is an opportunity for the Government to do what the Attorney General recommended in her recent speech in Cambridge, in which she identified the problem I describe of the courts taking a more incursive role into the business of high politics than is their proper place to do. The new clause, in respect of the Regulation of Investigatory Powers Act 2000, attempts to do just that.
The new clause would reverse the Supreme Court’s judgment and reinstate the law that Parliament clearly made. Before the Privacy International case, the courts had taken section 67 of the 2000 Act to be a clear, unambiguous ouster clause that excludes the jurisdiction of the courts in relation to the Investigatory Powers Tribunal. For 19 years, there has been no possibility of judicial review. In recent court judgments, including others such as the Adams case and the Miller case, we have seen the creeping role of the courts into those areas, with judicial review being used as the mechanism to allow that mission creep. It is important that the Government recognise that—from what the Minister has said, I think they do—and take effective action to address it.
Andy Slaughter
The right hon. Member for South Holland and The Deepings takes us back into the important constitutional territory with which he started his consideration of the Bill. He also, knowingly or not, revealed something about his taste in curry. For those who are looking slightly amiss about that, I refer to the opening paragraph of the article concerning the Bill that appeared in The Mail on Sunday, which said:
“The Justice Secretary, Dominic Raab, regards himself as a spicy ‘Vindaloo’ politician compared to the bland ‘korma’ represented by his predecessor, Robert Buckland, sources in his new ministry have told the Mail on Sunday.
The bizarre comparison was made in the context of the Judicial Review Bill, inherited by Mr Raab from Mr Buckland, which aims to clip the wings of the Judiciary over the extent to which they can rule on political decisions, such as Boris Johnson’s suspension of Parliament during Brexit negotiations in 2019.”
I will not go on, partly because the article contains some unparliamentary language, and in fairness to the Justice Secretary it ends with the immortal line:
“A source close to Mr Raab denied that he had ever compared himself to a vindaloo curry.”
The right hon. Member for South Holland and The Deepings puts himself more in the vindaloo than the korma camp with his comments, but I note that the new clauses that he has tabled are a subset of those in the Policy Exchange document, to which he referred, by Professor Ekins, who was one of the witnesses who gave evidence to the Committee. That document was a very powerful concoction indeed, because it contained 20 suggested new clauses or amendments, which were whittled down to seven on the amendment paper. After excluding those that were not in scope, we are down to two.
None the less, the import of what the right hon. Gentleman intends is still there, so I will respond to new clause 3 and, in due course, to new clause 5, and say to the Minister that it would be wrong to accept the new clauses, partly because of what they say and partly because of the way they are being introduced at this stage; they should really have come through the usual processes. That is to say nothing about the right of the right hon. Gentleman to table them now to raise the issue. Nevertheless, the provisions are being put to the Committee at a very late stage. The way in which they were tabled leaves no time for substantial parliamentary engagement or the required serious consideration of their merits.
Of course, Parliament is supreme, and there may be a case for looking at the propriety of certain Supreme Court decisions or changing the way that judicial review works, but this is not the proper way to enact measures of such constitutional significance. The bottom line is that if Parliament wishes to modify or overturn legal decisions as significant as those highlighted here, it should do so through a proper and full debate, with a full consultation beforehand, so that it can benefit from a wide range of expert views. Parliamentarians should be empowered to make proper, informed decisions. These rushed provisions undermine the parliamentary process and threaten ill-considered constitutional reforms, with unknown consequences.
Sir John Hayes
On the timing, the hon. Gentleman makes a fair point. He will know how the House works; he has been in it a long time. Clearly there will be opportunities for further consideration of the matters that I have raised, both on Report and during the Bill’s passage in the other place, so we are at the beginning of a very long journey.
As I said, I have not decided whether to press the new clauses to a vote, but I am putting down a marker. The hon. Gentleman will have seen that happen many times; indeed, he has done the same during scrutiny of the Bill, and I hope that some of his arguments will be heard. On the character of the marker, the new clause respects new clause 2 in terms of exceptional cases where the tribunal has acted in a perverse way, so it allows legal consideration of any exceptional, ambiguous or improper decision by the tribunal.
Andy Slaughter
I am grateful to the right hon. Gentleman, who made several points there. I am coming on to deal with each of them. I suspect that his new clauses and comments are directed as much—if not more—to his own Front Benchers as to me in putting that marker down, but the Government must have taken some care with the long title of the Bill, which is tightly drawn.
Obviously, I do not question the wisdom of the Clerks, but the two new clauses we are debating this afternoon have squeaked through because the long title clearly identifies what is in clauses 1 and 2. With all respect to the other place, and there are more stages still to go, it is not just the deliberation in both Houses that is important when discussing constitutional matters.
Andy Slaughter
No, and even the vindaloo version—the full Ekins version—does not attack the doctrine of judicial review. It is saying that the courts sometimes resolve matters procedurally and sometimes, in relation to specific judgments, the court has got it wrong and it is Parliament’s job to overrule, which Parliament is entitled to do. At the end of this legislative process, Parliament will have made those decisions. What we are debating now is what is or is not appropriate. Specifically, we are debating two discrete issues. The first is the decision in the Privacy International case against the Investigatory Powers Tribunal and whether an ouster should be imposed, and the second is about rather more widespread issues to do with disclosure and witness evidence. I am perfectly open to arguing those issues, but the point is that we happen to disagree: these measures are wrong, and that is what we are going to debate this afternoon.
Let me talk more specifically about new clause 3. The new clause would effectively overturn the decision in the Privacy International case by excluding judicial review of the Investigatory Powers Tribunal subject to a number of limited exceptions that broadly, although not exactly, mirror those in clause 2. That means that judicial review would be excluded except where the High Court must consider whether the tribunal had a valid case before it; was properly constituted to hear the case; or acted in bad faith, with actual bias, corruption or some other fundamental procedural defect.
As I have said, this would insert a second ouster clause in the Bill and would be a concerning addition to the restriction of Cart judicial reviews. The new clause includes similar exceptions—bad faith, fundamental procedural defect and so forth—to the ouster in Cart, but crucially they are even narrower than those in clause 2, in that the exception of where the court has acted
“in fundamental breach of the principles of natural justice”
has been removed. The more restrictive exception of where the court acts in a way
“that constitutes a fundamental procedural defect”
has been added. The trend suggested is extremely concerning and risks having a serious impact on the ability of individuals to retain redress, not to be subject to unlawful exercise of power, and to hold the Executive to account.
The first thing to note is that there is immediate uncertainty around those exceptions and how they might operate. There is already a problem with the Cart ouster in the main section of the Bill, and I have spoken at length about that in previous sittings. That uncertainty would only be multiplied by this new clause.
Judicial review is an essential constitutional remedy, and attempts to introduce and proliferate ouster clauses, as this new clause seeks to do, risk undermining the UK’s constitutional framework and the protection against abuses of Executive power. Judicial review is generally available only where there is no other recourse to an alternative remedy. The effect of ouster clauses is therefore often to shut down all routes to challenge a decision, even if the decision has been based on a misinterpretation of the law.
Furthermore, judicial review is an integral part of the UK constitution based on parliamentary sovereignty, ensuring that there is a means to address injustices and abuses of power. It exists separately and in addition to the Executive’s political accountability to Parliament. Ouster clauses risk undermining the effectiveness of judicial review as a means of legal scrutiny of the Executive. No matter how unpopular the cause or the claimant, the rule of law still applies and the Executive should not be able to go beyond their legal limits without the potential for accountability in the courts. In fact, it is precisely for such claimants that judicial review is so crucial.
Sir John Hayes
I rise to correct the hon. Gentleman but not in an antagonistic way. He will understand that this new clause—and, indeed, the Bill—do not supersede section 67A of the Regulation of Investigatory Powers Act 2000, which does indeed say that the tribunal can be challenged on a point of law. Contrary to his argument, there remains in existing legislation an additional safeguard if the tribunal acts in a way that is contrary to proper legal practice, and a point of law is the ground for an appeal.
Andy Slaughter
I am grateful for that intervention. I will come in a few moments to the powers of the Investigatory Powers Tribunal, so let us see whether that satisfies the right hon. Gentleman.
In relation to the ouster in clause 2, I spoke about judicial review’s role in ensuring good and lawful administration, but as that issue has arisen again I wish to emphasise the point in this new context. Judicial review is an incentive to maintain high standards in public administration by public bodies, because the possibility of judicial review motivates decision makers to ensure that their decisions are lawful. Ouster clauses such as this one remove such motivation and, coupled with the removal of the means through with such decisions could be challenged, risk a decrease in the quality of Executive decision making.
Decisions and guidance from the courts can also help to improve policy development and decision making in Government. Judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making, and decision making in Government. Indeed, judicial review provides the opportunity to bring to light legitimate concerns about a public body’s processes and decision making and then also gives guidance on improving the processes in the future and encouraging good governance.
The same applies to the Investigatory Powers Tribunal. The decisions of the Investigatory Powers Tribunal relate to potentially very significant Executive powers in the area of surveillance and privacy rights. In this context especially, the risk of a breach of the fundamental rights of individuals is high. It is therefore crucial that Parliament has sufficient time to carefully consider the consequences of restricting judicial review in this context, and this last-minute amendment does not afford that.
Fundamentally—regardless of what anyone thinks about the merits of the Privacy International case—this is not the way to go about amending it, or even thinking about amending it. Parliamentarians will be asked to vote on what is in effect a very significant legal change, without any real appreciation of the possible effects and consequences and, as above, without the benefit of expert input through consultation and parliamentary examination. A provision such as this should be the headline measure in any Bill; it should be considered and debated seriously and properly; and anyone voting on it should have a full understanding of the issues. It should not be introduced as a last-minute addendum to an otherwise unrelated set of measures concerning judicial review remedies. This new clause as drafted will generate serious uncertainty.
There is also a substantive argument here. In the Privacy International case, the Supreme Court essentially held that it is very difficult for the Government to completely close off judicial review—in this case, concerning decisions of the IPT. The Government should be very careful about reversing that decision: the immediate consequence would be to close off judicial review. If it is thought that the Privacy International decision should be revisited in the future, it should be ensured that parliamentarians are fully aware of any consequences of doing that, and perhaps some middle-ground solution that preserves access to justice could be tried.
The amendment takes a sledgehammer to what should be a carefully crafted and sensitively considered issue. That, in my submission, is not the appropriate way to do good law making.
Anne McLaughlin
I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.
I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.
I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.
Sir John Hayes
I am grateful to the hon. Lady for being so kind to me and my constituency, and my constituents by extension. It is clear that the Attorney General supports the new clause because she drew particular attention to the character of the Privacy International case in her recent speech on these matters. Inasmuch as she is the most senior Law Officer of the Government, whatever the Minister might say today—I appreciate that he may want to hold fire, to some degree—it is clear that the Attorney General understands and supports my argument.
Anne McLaughlin
I am not sure whether the right hon. Gentleman’s intervention was aimed at me or the Minister. If he was aiming it at me, all I will say is that it would not be the first, second, third, fourth or fifth way in which I disagreed with the Attorney General in her reckoning. I will sit down and allow others to speak.
James Cartlidge
This has been a good debate on the new clause, which is interesting in many ways from a constitutional point of view, both theoretically and practically. My hon. Friend the Member for Ipswich does not have a secondary role. I am his constituency neighbour. He has a fantastic role that he is fulfilling as a brilliant constituency MP. It was a great honour to campaign with him in the general election, and I see a return on that investment, as he is a vocal spokesman for people of all political shades in the fine county town of Suffolk.
The hon. Member for Glasgow North East may have, shall we say, come here through the use of a crutch, but she should not downplay the role that her speeches could play. Of course we listen. We listen to all sides. Indeed, I have listened intently to the debate on the new clause. I will say one thing to the hon. Member for Hammersmith: although I completely understand where he was coming from, and his points made political sense, he appeared at one point to suggest that it almost was not necessarily relevant to debate the new clause. The new clause is about judicial review, and we know the first two words of the Bill’s title. In fact, we just agreed to the clause on the short title, which includes the phrase “judicial review”; I think my speech on that was the shortest I have ever made, by the way.
My right hon. Friend the Member for South Holland and The Deepings made some important contributions, which I am grateful for. I hope he received the letter we sent him, which I believe has been circulated to other Committee members, containing the response on the important matter of the most vulnerable children—those in care. I hope that reassures him on the safeguards. Secondly, on the make-up of the coronial stakeholder group in administrative justice, which introduces a broad umbrella because of the nature of the engagement, I hope that the letter has persuaded my right hon. Friend. I am therefore tempted to eke out the general thread of my argument and hope to encourage him that I am someone who is generally able to persuade people of things. The sword of Damocles that he holds over this speech with the threat to vote can be dealt with.
I should pay tribute to my right hon. Friend for his former role as Security Minister, which he referred to. He was involved in important proceedings when our country, as was proudly illustrated this morning, faced great threats, not least terrorist threats. He was also a Transport Minister, and I met him to discuss roads in my constituency. The essence of his argument was that the Bill does not go far enough, so he wants to debate important probing amendments. I will come back to that wider point.
On the specifics, as has been explained, new clause 3 would amend section 67 of the Regulation of Investigatory Powers Act 2000 by replacing the wording in subsection (8) and adding three additional subsections. Subsection (8) was originally drafted as an ouster clause—we have already debated ouster clauses in relation to clause 2— to ensure that certain decisions of the Investigatory Powers Tribunal would not be subject to judicial review by the High Court. A right of appeal on a point of law was later introduced by the Investigatory Powers Act 2016 and is set out in what is now section 67A.
The tribunal was intended to be the highest authority concerning matters such as the conduct of intelligence services. However, a 2019 judgment of the UK Supreme Court rendered the ouster clause of limited effect in what we have all referred to today as the Privacy International case. The Supreme Court found that while subsection (8) was effective at excluding judicial review of IPT decisions on their merits or jurisdictional decisions involving issues of fact, it did not have the effect of wholly ousting the High Court’s supervisory jurisdiction.
The new clause would amend the ouster clause in section 67 by clarifying and adding to the text in that section so as to meet the objection of the Supreme Court in Privacy International. That is an interesting idea, and I am sure my right hon. Friend is aware that the Government’s consultation, published in March, expressed concern around the uncertainty that exists as to whether, or in what circumstances, ouster clauses will be upheld by the courts. We therefore consulted on options to try to add some clarity with a broad framework for the interpretation of ouster clauses, but, having reflected on the many useful responses we received, we concluded that although our intention was to add clarity, the effect may in fact be to muddy the waters yet further.
As an alternative approach, we are pursuing the ouster clause in clause 2, which is designed to overturn Cart, seeks to learn the lessons from unsuccessful ouster clauses of the past, and is drafted in a clear and explicit way. We have been open in saying that if that approach is successful, we may consider whether it can be used as a model for ousters in other areas, where it is appropriate to do so. At least conceptually, I see the link between ousting the High Court from reviewing permission to appeal decisions of the upper tribunal and ousting the High Court from reviewing decisions of the Investigatory Powers Tribunal. They are both essentially concerned with which court ultimately should have the final say on an issue.
Sir John Hayes
I am going to give the Committee the benefit of my further wisdom in a few moments, but on that particular issue, the point about the Investigatory Powers Tribunal is that it is a specialist court, and the intention of the House in establishing that court—the Minister made reference to the Regulation of Investigatory Powers Act 2000 and the Investigatory Powers Act 2016; the 2016 Act was the one that I took through the House, as he knows—was to indicate that had Parliament decided that the tribunal’s important work, which essentially gives authority as well as supervision to the security services, should not be questioned in an ordinary court. The Supreme Court countered Parliament’s will in that respect. That is why this is so significant. It draws into question whether the Supreme Court might do the same in respect of other primary legislation that has ouster clauses in it, which is why it is important to act now in this Bill.
James Cartlidge
I pay tribute to my right hon. Friend’s legislative prowess in taking that Bill through the House at the time. It is precisely because of his point that in paragraph 55 of our consultation response document, published in July, the example we give of a case where we may look at using a Cart-like model of ouster clause in future is exactly this one—the Investigatory Powers Tribunal. We have made clear that we are looking at that. The Government are not closed-minded to the possibility of going further on judicial review. In a recent interview with The Sunday Telegraph, the Deputy Prime Minister spoke of the importance of restoring power to Parliament, while recognising the need for reform of judicial review to be an iterative process. I am sure he will have heard today’s debate and the many forceful points made, but the Government will keep an open mind on whether that tribunal might be a candidate for an ouster clause in future.
Our focus in the Bill is to tackle the two particular issues identified by the independent review of administrative law: the efficiency of Cart JRs and the lack of remedial flexibility in judicial review. I know my right hon. Friend the Member for South Holland and The Deepings is sympathetic on this point. There is a good reason for prioritising Cart—we have a judicial backlog, and the resource implication of it is immediate and credible. [Interruption.] My right hon. Friend says from a sedentary position that he understands. It will be important to ensure that before an ouster clause is proposed in any particular context, careful thought is given to what will be achieved by doing so and to considerations germane to that context. One size does not necessarily fit all, but we are open minded.
A key point I wanted to communicate is that my right hon. Friend invited me to become a star. His invitation to stellarhood is one I cannot begin to match, but I will at least attempt to do so by offering him an invitation to attend the Ministry of Justice to discuss with officials present some of these ideas in depth—especially given his expertise from his time as a Minister, talking in that neat language of Ministers and officials who know their Bill—and to talk through some of the technicalities. We do see the merit in what he says; it is more a question of timing.
In summary, my right hon. Friend says we do not go far enough; I would say that we go this far at this time. I hope that reassures my right hon. Friend and other colleagues that this is an issue to which the Government are already alive and to which I am sure future consideration will be given. But for now, for the specific purpose of the Bill, I respectfully request that he withdraw his new clause.
Sir John Hayes
When I said the Minister could become a star, I should have said a brighter star, because he has already shone in his response, particularly his generous invitation to meet with and discuss these matters with his officials in his Department. I take his point, of course, about the characteristics of the Bill, the need to address Cart in particular, and its relationship to the backlog in the courts. However, the Bill is about principle as well as practice. There is a practical reason for introducing the Bill, but a principle underpins it, which he has articulated a number of times during our deliberations: it is not right that the court system should be gamed to frustrate the will of the House.
My hon. Friend the Member for Don Valley spoke about his constituents wanting to see the will of the House as a manifestation of their will being delivered. The disturbing rise in judicial activism and judge-made law raises fundamental questions of parliamentary sovereignty. Mr Rosindell, whether you are or are not convinced of that I do not know, as you are the impartial Chair in our affairs, but the witnesses who gave evidence to the Committee are certainly convinced. Professor Ekins said that the Privacy International case did constitute a “very serious attack” on some fundamental questions of the constitution. He stated:
“The rule of law requires respect for the law, which includes parliamentary sovereignty and the stability of statute”.
In oral evidence, Sir Stephen Laws said:
“If the courts are deciding judicial review decisions that set the rules for future hypothetical cases, they are usurping the legislative function.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 9-15.]
That is pretty damning criticism of the Privacy International judgment and other recent cases.
Tom Hunt
Does my right hon. Friend agree that the key issue in relation to new clause 3 is the Investigatory Powers Tribunal, the complexity of the things it will deal with, and the complexity of the roles of the organisation and people it is overseeing? That complex debate should be dealt with only by Parliament. We are best placed to have that debate and to come to the right conclusion. Decisions about whether judicial review will apply to that or not should be for this place, not for the judiciary.
Sir John Hayes
I agree. Indeed, when I proposed the Investigatory Powers Act 2016, to which the hon. Member for Hammersmith referred and which built on the Regulation of Investigatory Powers Act 2000, which Privacy International specifically dealt with, there was a genuine spirit of co-operation across the House. I worked closely with my then shadow, who went on to become Leader of the Opposition. I often say to him these days, “You learned your trade under me.” In fact, I think he said that to me. In any case, we worked closely on those matters and it was detailed scrutiny, as my hon. Friend has just described, that led to that Bill becoming an Act.
Indeed, we undertook extensive pre-legislative scrutiny, and one of the people I appointed to that task is now Attorney General. The scrutiny, under Lord Murphy, looked at the Bill in some detail, as the hon. Member for Hammersmith suggested, and there were long debates in the House and in the other place before it became law. As I emphasised earlier, we were determined that there should be proper safeguards.
The essence of this, Mr Rosindell, is that in these difficult, delicate and challenging matters of security, Parliament has to legislate—I would not say regularly, but as often as necessary—to allow our security services and the forces of law to stay ahead of those who wish to do us harm. The problem is that the capabilities of malevolent elements are dynamic, so the legal powers of those with the mission to keep us safe must match that dynamism. That is always challenging to Parliament, because there is a balance to be struck between the maintenance of law and the protection of liberty. That debate is the context for many of these considerations. It is not the place of the courts of make up the law as they go along, but that is exactly what has occurred.
I referred to the Attorney General earlier. She could not have put that case more plainly in the speech she made a few weeks ago at Cambridge University:
“The Supreme Court’s judgment in the case of Privacy International was also profoundly troubling for a number of reasons. A decision by Parliament to limit the judicial review jurisdiction of the Courts should only be taken after the most serious consideration by the legislature. And there may well be circumstances where Parliament does consider that to be appropriate. In such circumstances, the Court should be very slow to deprive legislation of its proper meaning”.
That is essentially what the Court did in the case of Privacy International. It deprived legislation of its proper meaning. The most generous way to describe it is that the Court interpreted the decision made by Parliament in what I regard as a perverse way, and, in the words of the Attorney General, a “profoundly troubling” way.
The new clause, which the Minister will know is in scope—it is not for me to gauge that; our expert Clerks judged it, so there is no doubt about whether it is appropriate to add it to the Bill—would address that concern about creeping judge-made law in what is, as my hon. Friend the Member for Ipswich said, a very sensitive area. I am grateful to the Minister, who made a generous offer and rightly drew attention to his helpful letter on issues raised by me and other hon. Members in our earlier consideration. I am particularly grateful to him for fully taking into account the case that I made on behalf of disadvantaged court users; his letter is most welcome in that respect. With the offer that he made of further discussion, the open-mindedness that he has shown and his clear understanding of why the new clause was tabled, I will—hesitatingly and to some degree reluctantly—beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 5
Evidence in judicial review proceedings
“(1) Unless there are compelling reasons to the contrary, no court shall—
(a) permit oral evidence to be elicited in judicial review proceedings; or
(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings,
(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—
(a) the proceedings concern a matter that is non-justiciable, or
(b) that an enactment excludes or limits judicial review,
(3) In subsection (2), “evidential duty” means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.
(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”—(Sir John Hayes.)
Brought up, and read the First time.
Sir John Hayes
I beg to move, That the clause be read a Second time.
This new clause deals with evidence. Again, it has been deemed by the Clerks to be in scope and it would therefore be an appropriate addition to the Bill. It is very much in the spirit of my previous remarks.
It is important to understand that the new clause has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence and a resolution disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because it is a supervisory jurisdiction that should focus on questions of law rather than questions of fact. That was its well-understood basis for a considerable period of time.
As well as the changing character of the courts’ role in relation to the legislature, there has also been a change in the application of judicial review in respect of evidence. The courts ought to be focusing on the legality of decisions taken and whether it stands up to appropriate levels of scrutiny. That is the business of a judicial review. Allowing disclosure and cross-examination could lead to litigation becoming an exercise whereby new material is introduced on a fishing expedition. Rather than testing the proper exercise of powers, as judicial review is supposed to do, it could lead to the whole character of a case being revisited and perhaps the introduction of new evidence that was not pertinent to the original decision or even known to the original decision makers. That is not its role, and the Bill is a perfect opportunity to address that distortion of its original character and purpose.
As the Minister has told us a number of times, the Bill aims to tighten the judicial review process and essentially re-establish its pertinence, salience and purpose. The new clause would do exactly that. The change in practice has arisen partly because of overarching legislation such as the Human Rights Act 1998. There is a case for the wholehearted reform of the Human Rights Act, or its abolition altogether. However, this is not the place to have that debate—although, I understand that the Lord Chancellor has spoken on those matters and is considering addressing them in the House in due course. The point to be made here and now is that the Act has spilled over into judicial review decisions. It is clear that in recent years judicial review using the Act has become an opportunity to have a much wider debate and discussion than this legal mechanism originally intended—the original purpose was to check the correctness of decision making.
Subsection (2) of new clause 5 addresses the problem that arises when judicial proceedings are used to force public bodies to disclose information even in contexts where the public body argues that the law forbids judicial review. If a matter is non-justiciable, or if legislation ousts judicial review, the public body will not be compelled to disclose evidence simply because litigation is threatened or initiated. The clause will require courts to decide whether the matter is justiciable or whether legislation permits judicial review before the public body will have any duty to disclose information relevant to litigation.
New clause 5 would not allow any litigation that should not. Those are cases in which the matter is justiciable and no ouster clause forbids judicial review. It would require courts to make decisions in the right order, avoiding the risk that was apparent in the Supreme Court’s Prorogation judgment: that the courts are led astray by the evidence before them rather than focusing squarely on the question of law that they should decide. The Miller judgment was exceptional and, in my judgment, perverse. It is fundamental to our constitution that the appointment of Ministers, the Dissolution of Parliament and, by extension, Prorogation are matters for the Executive and not the courts.
One might argue that when the Supreme Court was established—it was a sorry day, Mr Rosindell, but you will not allow me to debate that at great length here, and nor will I—this was almost bound to happen: that the very existence of the Supreme Court would encourage those who sit on it to extend their powers into matters of what the Attorney General called “high politics”. That apart, the Prorogation judgment was a naked example of the courts making a constitutional decision in a way that is appropriate only for this elected House, our Parliament—both because we are answerable to the people and because, as I said earlier, our legitimacy derives from the people. This is about proper process, but it touches on the broader issue of the respective roles of the judiciary, the Executive and the legislature—the separation of powers to which I referred in an earlier sitting.
The Minister will again, I hope, recognise that the new clause is very much in the spirit that he set out when he made it clear that the Government want judicial review to be what it was always intended to be and has been for most of its life, rather than something very different, which is what it has become. With that in mind, I hope that he will give the new clause, which is significant but not in any way out of keeping with the Bill’s intent, a fair wind. Rather than, as last time, offering me a meeting—although I was very grateful for that meeting—I hope that this time he will say that the Government accept it, and will at a later stage introduce a Government amendment.
Andy Slaughter
I give full credit to the right hon. Gentleman, who has taken the new clause, important and substantial though it is, and turned it almost into a Queen’s Speech. We will have a second judicial review Bill, a repeal of the Human Rights Act 1998, and then a repeal of the Constitutional Reform Act 2005. The Minister will be a very busy man in the new year.
Andy Slaughter
We will see. Unfashionably, I will confine my comments to new clause 5, which restricts disclosure by public bodies and the use of oral evidence in judicial review proceedings to circumstances where there are “compelling reasons”. In addition, under subsection (2), if a public body argues, or indicates its intention to argue, in relation to or in anticipation of any judicial review proceedings, that the proceedings concern a matter that is non-justiciable or that review is excluded by an enactment, the public body will not be subject to any evidential duty at all until a court regards the matter to be reviewable.
Subsection (1) relates to disclosure orders, which are already limited by the courts. Additional legislative provision is unnecessary and may reduce clarity and cause unnecessary litigation. Oral evidence is rarely used in judicial review proceedings. However, the courts retain a discretion to permit oral evidence where it is considered necessary to do so. Judges use that discretion appropriately and frequently deny requests to adduce oral evidence unless it would, in fact, be necessary for the case at hand. Applications for oral evidence can be made by claimants and defendants in judicial review claims, and there is no indication that the impact on public authorities has been thought through. The system works well, generally respecting the unique nature of judicial review while allowing parties—both claimants and public bodies—to adduce oral evidence in rare cases where it is necessary to do so. There is no indication that there is a problem with the system that the proposals seek to address.
The new clause goes beyond oral evidence and imposes a bar on judges ordering disclosure of evidence. There is no formal disclosure duty on parties in judicial review proceedings, unless the court orders otherwise. Such orders are already rare and there are many examples of courts refusing applications for disclosure on the basis that they are not necessary. Indeed, the court will not countenance fishing expeditions, where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of finding something to use to fashion a possible challenge. Where the disclosure power is used by courts, however rarely, it is vital: a judge will only ever order disclosure where it is necessary for the fair resolution of the case.
It is unclear what adding a requirement of “compelling reasons” for ordering disclosures of evidence would do to the existing position. The current test, as set out by Lord Bingham in Tweed v. Parades Commission for Northern Ireland, is:
“whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly.”
On one reading, that would be just an alternative translation of the existing position: a “compelling reason” for adducing oral evidence would be that it is “necessary” to do so. If that is the case, the proposed additional clause is a clear waste of time. However, if it is intended to be a stricter test to raise the threshold for which evidence is admissible, that is problematic in that it would operate to preclude disclosure of evidence required to resolve the case fairly and justly. That would clearly be to the detriment of the parties and the wider public, and therefore should be resisted.
It is also important to note that disclosure of evidence benefits not only the claimant but often the public body, by allowing the defendant public body to show that the decision taken was lawful. Defendant public bodies may also make applications for disclosure and/or oral evidence. Subsection (1) would reduce the ability for claimants to obtain disclosure, which is crucial for claimants to be able to bring a case as well as for defendants to be able to defend it.
Sir John Hayes
I understand that the hon. Gentleman is setting out what the new clause does, but he will understand that at its heart is the determination that judicial review should look at the specifics of an individual case, rather than a systemic consideration of the whole administrative system. In recent times, because of the courts’ willingness to draw on all kinds of evidence, they have tended to broaden the scope of their work in a systemic fashion. What does he think about that and what should we do about it?
James Cartlidge
It is a pleasure to follow the hon. Lady, who made some perfectly reasonable points. It is disappointing that she did not rise to the bait by entering into the curry-labelling discussion instigated by the hon. Member for Hammersmith. I am not sure that my hon. Friend the Member for Ipswich is a vindaloo—I think he is a phaal. Anyone who googles that will find that it is the hottest curry there is. Maybe my right hon. Friend the Member for South Holland and The Deepings is a phaal as well. It is inevitable, then, that they all think the Bill does not go phaal enough. As a great fan of curry, I generally go for the specials on the à la Cart menu. [Laughter.] That was not a reference to clause 2, by the way.
In new clause 5, my right hon. Friend is probing in his uniquely penetrating way of gaining the Committee’s attention and focusing on some important points. I will try to set out why, although there is merit in what he says, it is not right for this precise moment—perhaps with further work, not least as there may be other potential routes to achieving his end.
The new clause would amend the Bill to include some specific rules relating to disclosure and the duty of candour in judicial review cases. The clause would do three things. First, it would remove the ability of the court to permit oral evidence to be given unless there are compelling reasons to the contrary. Secondly, it would remove the ability of the court to order a public authority to disclose evidence at all, either in anticipation of proceedings or during proceedings, unless there are compelling reasons to the contrary. Thirdly, in cases where a public authority is arguing that the subject matter is non-justiciable altogether or judicial review jurisdiction has been ousted, it would remove any evidential requirement on the public authority until the court has ruled on the subject of justiciability or jurisdiction.
The duty of candour is a common law concept that obliges parties in judicial review proceedings to disclose information relevant to the case. The independent review of administrative law examined that duty when it conducted a call for evidence last year. Legal practitioners and other stakeholders identified issues relating to a lack of clarity surrounding the exact extent and precise nature of the obligations arising from the duty. The independent review concluded that the duty of candour may have previously been interpreted in a way that causes a disproportionate burden on public authorities, and that there would be benefit in clarifying the parameters of the duty. The Government would like to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would have otherwise been kept confidential.
I reassure my right hon. Friend and my hon. Friend the Member for Ipswich that this remains very much a live issue for the Government. The difference here, I suspect, is not a question of objective, but of how best to achieve it. The independent review recommended that the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is, of course, a matter for the Treasury Solicitor, the advantage to using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation.
As I have already indicated, the Government remain open-minded about the possibility of going further on judicial review reform in time. Although my instinct continues to be that any issues with the operation of the duty of candour are better addressed through other means, and not through primary legislation, I will reflect on the arguments that my right hon. Friend has made for a legislative response. We have already discussed the point of the meeting. I am quite clear that that could be wide-ranging and could include this discussion, too. They all fit within the same theme, which he has painted with a broad brush today. I am quite happy to look at it in those terms, but also in more specific terms, particularly with the benefit of officials and so on.
In the light of the complexity of the issues at stake, and the importance of getting the legislation right, I cannot accept my right hon. Friend’s new clause. I hope that, with my reassurance that that the Government will continue to actively consider the matter, he will agree to withdraw it.
Sir John Hayes
I am grateful to the Minister for again offering further discussion on these subjects. I am also pleased that he is considering other means to achieve the objectives that I set out. He is right that the independent review addressed these matters and, by the way, did so on the basis that I described: that by taking wide evidence judicial review was rehearsing decisions rather than checking on the exercise of them. Judicial review is about ensuring that, in the exercise of decision making, all has been done properly. It is not about reheating wide-ranging contextual arguments.
The problem with collecting oral evidence in a permissive way is that it is bound to lead to just that. That was identified by Professor Ekins and others, in the evidence that they gave us and beyond. The Minister is right to consider through guidance how that could be altered. Statutory guidance would be a very effective way of doing it, providing that his officials and others are confident that it is sufficient. There is always a balance to be struck between primary legislation and guidance, and we need to be clear that it will be sufficient in this case.
We talked a little about how jurisprudence has moved on, and in particular the Miller case. In the end, the decision of the Supreme Court in that case meant that it, in the words of the Attorney General,
“stepped into matters of high policy in which the UK courts have historically held themselves to have no constitutional role.”
That is a direct quote from the Government’s most senior Law Officer. In the two new clauses, and in those that were not selected because they were deemed not to be in scope, and which I will therefore not discuss, I have tried to make the case that the Bill is very welcome, but it is a korma rather than a vindaloo. It is certainly not a madras. It can be more varied and hotter, to develop the metaphor. I can match the Minister blow for blow in terms of my grasp of Indian cuisine.
James Cartlidge
On a point of information, my right hon. Friend must be aware that a madras is technically milder than a vindaloo, but a vindaloo is certainly milder than a phaal.
Sir John Hayes
That is true, but I see the Minister as something between the two. He is more of a jalfrezi—spicy, lively and deeply satisfying, in terms of his response to my new clauses at least.
It is worth drawing attention to the remarks of Lord Sumption, who of course commented on exactly these matters in his Reith lecture. Jonathan Sumption is the judge who, perhaps more than any other, has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:
“It is the proper function of the courts to stop Government exceeding or abusing their legal powers.”
That is exactly the role of judicial review, by the way. He continued:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament, raises quite different issues. It confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do. It also undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens.”
He went on to say in that lecture that it was about developing the right kind of political culture. It is appropriate that the political culture that underpins our deliberations in this place is a means by which views can be mitigated and ameliorated, where necessary, in a way that courts cannot do because of their character and function. I remain of Jonathan Sumption’s view that much needs to be done to put right what the courts have got wrong in recent years, and I stand alongside the Attorney General in her determination to do that.
James Cartlidge
Further to that point of order, Mr Rosindell. May I echo the remarks made by the hon. Member for Hammersmith, particularly in thanking you and Sir Mark for your dual chairmanship, which has operated effectively and efficiently, together with your officials and the Clerks? May I particularly thank the Doorkeepers? As I said earlier—I really meant it—what we saw from them today, walking behind Sir David’s coffin, was incredibly moving.
I thank all members of the Committee, on both sides. No one goes into proceedings expecting that we will all agree on all points, but that does not matter; conduct is different from that. I think we have seen effective debate, proceeding at reasonable speed most of the time, but with that combination of depth and rigour that is important in a Bill Committee. That is the point: we are going through a Bill line by line. I am grateful to SNP and Labour colleagues. I particularly thank those on my side of the Committee. We heard many excellent speeches and contributions, but they also knew when to keep their own counsel, so that we could keep the ship of the Bill sailing in the right direction.
This is an important Bill. The context is difficult. The post-pandemic situation is challenging, with a significant backlog of cases, and we are doing everything we can to deal with that. The Bill contains some significant measures on that front. It also contains the important reform of judicial review—more for another time.
It remains only for me to thank everybody for their participation. I am grateful that we have managed to move to this stage, and that we now move onwards and upwards.
Sir John Hayes
Further to that point of order, Mr Rosindell. On behalf of the Back-Bench Members on this side of the Committee—and I hope others too—I thank the Minister and the shadow Minister. I served as a shadow Minister and a Minister for 19 years and I know how hard it is, particularly from the other side of the Committee, to maintain the progress of debate and to retain the calibre and character of scrutiny.
I thank the Minister for the way he has gone about his business, and the shadow team for the way they have gone about theirs. I wish the hon. Member for Stockton North well, as he has now fallen ill. I also thank you, Mr Rosindell, and your fellow Chairman, and all others who have made the Bill proceedings possible.
Anne McLaughlin
Further to that point of order, Mr Rosindell. I want to reiterate what everybody else has said and thank everybody involved. I wish the hon. Member for Stockton North well and I hope that he recovers by a week today, St Andrew’s day, because he will be wanting to celebrate.
I thank my hon. Friend the Member for Lanark and Hamilton East—I have finally got the constituency name. That is not as great a constituency name as South Holland and The Deepings, however. I am going to visit, and I will let the right hon. Gentleman know when I do.
This has been a really interesting Bill Committee. I used to resist going on Bill Committees, but I came from the Nationality and Borders Bill Committee straight to this one, and they are the best bit of the job, because they are probably the only time we really get an in-depth understanding of what we are doing. A lot of the time, we have to skim through things because there is so much to consider. I look forward to the next Bill Committee.
I thank the Clerks and everyone involved, including the Doorkeepers. For those who are not speaking and are not involved in the debates, it must be really boring having to sit there and listen to it all. There are no nods of agreement there, but I can pick the answer up telepathically. If I have missed anyone in my thanks, I am sorry—oh, the Chairs. Thank you very much; thank you again for your forbearance, Mr Rosindell, when I was injured. I am still injured, but am recovering.
John Hayes
Main Page: John Hayes (Conservative - South Holland and The Deepings) Judicial Review and Courts Bill
John Hayes ExcerptsTuesday 25th January 2022
(2 years, 5 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)
Madam Deputy Speaker (Dame Rosie Winterton)
In view of the shortness of time, I will have to impose, to start with, an eight-minute time limit. It may very well have to be reduced later.
Sir John Hayes (South Holland and The Deepings) (Con)
I rise to speak on new clauses 8 and 9, which stand in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt).
Those who served on the Bill Committee will not be unfamiliar with the arguments I intend to address, as we rehearsed them at considerable length in Committee. The Minister knows well my general concerns about the Bill: while it is a good start in dealing with the pressing issue of judicial review and how that has been distorted by recent judicial practice, it is only a start. We need much more wide-ranging reform of judicial review and, indeed, much more wide-ranging reform of the relationship between this House and the judiciary, as set out in the Attorney General’s recent speech in Cambridge on judicial activism.
New clause 8 addresses the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000, and especially in circumventing the role of the investigatory powers tribunal. I take a particular interest in that, having been the Minister at the Home Office who introduced the Investigatory Powers Act 2016, which deals with the necessary precautions and safeguards associated with the storage and retrieval of electronic data. Indeed, the Bill I took through the House introduced the double lock: all warrants, as well as being dealt with by the Home Secretary, are, as an additional safeguard, dealt with by a judicial commissioner. That safeguard was to ensure the core principles of proportionality and necessity, which lay at the heart of all considerations of that kind.
The problem is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in context. The supremacy of Parliament is fundamental to protecting the interests of the people. Parliament’s role in our constitutional settlement is not—as was suggested in an evidence session with Aidan O’Neill QC—a matter of neutrality.
Marco Longhi (Dudley North) (Con)
Does my right hon. Friend agree that the events of Brexit showed the vivid importance of always maintaining the sovereignty of this place and respecting the will of the people?
Sir John Hayes
Absolutely. The separation of powers does not deal with neutrality. It deals with different powers, which are, by constitutional arrangement, held by the courts and this place. The relationship between the two is critical. It is critical to our considerations today and more critical still to our constitution. A. V. Dicey argued that the separation of powers confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together. Therefore, as Dicey says:
“The principle of Parliamentary sovereignty means neither more nor less than this, that Parliament… has… the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
That is precisely the point that my hon. Friend makes.
We need to reaffirm that principle in general and the Bill is an opportunity to do so. Any Parliament that makes a new law or repeals a law will be obeyed by the courts. That is fundamental to the role of this place. All of us who represent the people, as my hon. Friend says, have a duty, not just a mission, to reflect the will of the people.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Is not the point of judicial review to make sure the Government comply with the rules and restrictions set by Parliament? Restrictions on judicial review allow the Government to ride roughshod over Parliament’s views.
Sir John Hayes
That is, of course, true, and it is why judicial review exists. The hon. Gentleman is right that there need to be checks and balances, but it is wrong to use judicial review to perpetuate matters of high politics or to perpetuate debates that have been settled in the country and in this place.
What we heard from the Minister when we debated these issues at considerable length is that, in effect, people are having several bites of the cherry. Debates were settled and then people came back to reopen them and revisit subjects that had already been agreed. That is not the role of the judicial process and it is certainly not the role of judicial review. The Bill goes some way to addressing that.
The purpose of my new clauses is to probe and press the Government to do more. I strongly urge the Minister to accept them with enthusiasm and alacrity because to involve the courts in matters of investigatory powers, as I said, is quite wrong. The landmark Privacy International case of May 2019 illustrates how wrong it can be. I will not go into detail because time does not permit, but other hon. Members will be familiar with the case and its legal ramifications. I recommend the Attorney General’s speech, which I have mentioned already, to those who want to find out more.
Professor Richard Ekins gave evidence to the Public Bill Committee, and he wrote an excellent paper on these subjects for Policy Exchange. He describes the Supreme Court’s judgment in respect of the Privacy International case as
“a very serious attack on some fundamentals of the constitution.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 15.]
For a very long time, it was not accepted that the courts should become involved in matters of investigatory powers, and particularly the tribunal. There was no possibility of judicial review for 19 years after the 2000 Act was passed.
Sally-Ann Hart (Hastings and Rye) (Con)
Will my right hon. Friend confirm that these new clauses would, in effect, stop judicial review departing from a narrow focus on a particular public Act and becoming a free-ranging inquiry into Government decision making?
Sir John Hayes
My hon. Friend makes the point more eloquently than I ever could, partly due to her expertise. The real point is that these cases have created the possibility of a much more wide-ranging rebalancing and reappraisal of the relationship between the courts and Parliament, without public consent—indeed, the public have not been consulted. That is not good for the courts. We want to maintain the integrity of the judicial process by affirming the characteristics they have long enjoyed that underpin the separation of powers. New clause 8 would not only do a great service to the cause my hon. Friend highlights, but improve the Bill and be in the courts’ own interest.
It is important to understand that new clause 9 has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence or resolving and disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because they are a supervisory jurisdiction that should focus on questions of law rather than questions of fact. Once again, what has occurred over time is that the courts have strayed into debates and inquiries about matters of fact rather than matters of law. That status quo prevailed for a very long time, but the role of the courts has altered. Furthermore, there has been a change in the application of judicial review in respect of evidence. The courts ought to be focused on the legality of a decision, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) said, and whether it stands up to appropriate levels of scrutiny—that is the business of a judicial review. Judicial review is supposed to be a backstop, a check, of the kind he described in his intervention—
Mr Alistair Carmichael (Orkney and Shetland) (LD)
The difficulty I have with the right hon. Gentleman’s argument is this: where facts are in dispute, how can a court be expected to rule on a point of law without hearing evidence?
Sir John Hayes
The court can take evidence, but what it should not be doing is fishing for further information, of a wider variety, which opens up consideration of the original process, rather than checking whether that process was right and proper; it is a subtle difference but a fundamental one in terms of the change in the way courts have gone about their business.
Our new clause addresses this issue, as the Minister will know. Jonathan Sumption is the judge who perhaps more than any other has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:
“It is the proper function of the Courts to stop governments exceeding or abusing their legal powers.”
That is absolutely what JR should be, but I fear that it is being compromised by the changes that are taking place as a result of judicial activism. So, mindful of the Attorney General’s advice on this and of the fact that the Government clearly are in tune with that advice—otherwise, they would not have introduced this Bill in the first place—I urge them to accept the amendments, in order to make this Bill be as good as it can be. Rather than waiting for another bus to come along, we should get on this one and get to the destination we all seek.
Anne McLaughlin (Glasgow North East) (SNP)
Much of this Bill has no impact on Scotland or our separate courts and legal system, so our amendments and my comments are focused on the parts that do, which primarily deal with judicial review. The parts of the Bill I will address today are not just bad; they are unnecessary and dangerous, and they lay the groundwork for the Government to insulate themselves and future Governments from proper scrutiny and accountability. I am sure that is on their personal wish list given current events, but we ought to make policy for generations, for everyone and not for one iteration of one political party.
I sat through 11 sittings of the Public Bill Committee and waited for the Government to persuade me that, for example, removing Cart JR was necessary, but instead I heard odds and sods of anecdotal evidence, lots of legal jargon and the phrase “three bites of the cherry” a total of 62 times, with the implication that somehow those using Cart JR had greater access to justice—that simply is not true. Cart JR is not about saying, “I don’t like the decision you've come to, let’s try again for a different judgement.” It is about looking at the situation where, first, a serious error of law may have been committed in the first-tier tribunal, and then the upper tribunal has failed to recognise and correct the error. It could be that the first-tier tribunal failed to consider or misinterpreted the evidence, or that the facts are inconsistent with the decision, but the point is: it happens, mistakes are made and Cart JRs provide a vital safeguard to correct these errors in cases where the stakes can be incredibly high. Rather than this being a “third bite of the cherry”, the reality is that the first bite was not even a slither—a mistake was made. Mistakes do not just affect the person in question; the ramifications are wider. Similarly, Cart JRs not only give one person who has appealed the opportunity to have their case considered properly, but they catch out errors and injustices, benefiting the system as a whole. Cart JRs have been used to ensure that disabled people are given the right benefit entitlement; they have stopped people being made homeless; and they have prevented the deportation of people to countries where they faced certain death. I am currently waiting to attend a first-tier tribunal on behalf of a family member. Given my knowledge of her and of the social security system, I am 100% certain of her entitlement and equally certain it will only fail if a mistake is made when considering the evidence. If that happens, surely my family member deserves the right to have it rectified—surely everybody has that right.
The thing is: the Government know that the impact will be far greater on those who are most vulnerable. In their own impact statement for this Bill, they admit that abolishing Cart would mean that
“those who do lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
So anyone voting for this ought to be aware and be honest with their constituents that they are consciously voting to the detriment of their constituents with protected characteristics. It is estimated that this will save only £364,000 to £402,000 a year. That is the cost of protecting the rights of some of the most vulnerable people. It is not much to ask for, is it? Let us not pretend that this is about being prudent with the public purse after writing off £4.3 billion of fraudulent covid claims last year.
We will vote against this terrible Bill, but if it does go ahead, our amendments 42 and 43 would protect the Scottish courts and tribunals from clause 2. We in Scotland do not want it, the legal profession does not want it, the Scottish Government do not want it, and I guarantee that the people of Scotland do not want it. This Government are trying very hard to demonstrate their alleged respect for Scotland—in words if not in actions—as the Scottish Government lay the groundwork for an independence referendum; some would say, because of the independence referendum. Well, now is their chance. Now is the chance for all the parties in this place to show Scotland just how much respect they have for our separate and distinct legal system and our right to protect it, and ourselves, from this legislation.
My final thoughts on clause 2 relate to the way in which the Government intend to make this happen—the legal framework. The Government say that the use of an ouster clause will set a precedent for removing certain cases or areas out of the scope of judicial review, but what does that mean? It means that in future they intend to cherry-pick areas that they would rather not see judicially reviewed, which sounds every bit as dangerous as it is. The rule of law and the separation of powers are hallmarks of an effective democracy; we cannot allow the Government to pick and choose where and how they face judicial scrutiny. As Liberty reminds us in its briefing, this Bill is passing through Parliament at the same time as the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Elections Bill, to name but a few. Now more than ever, we need the ability and deserve the right to hold the Government and public bodies to account.
Clause 1, on suspended quashing orders and prospective-only remedies, does not extend to Scottish courts and will not apply directly, but it will affect UK-wide legislation to which we are all subject. It will also mean that many more people across these islands may choose Scottish courts, and while I am always happy to promote Scotland and our separate legal system, there may be a capacity issue that has not been discussed or even considered.
Along with others, I have raised the landmark Unison judicial review of 2017 a number of times. The Supreme Court agreed that the fees for access to justice via employment tribunals were unlawful, so everyone who had paid them was refunded, and the Government were no longer allowed to charge the fees from the moment of that judgment. Let us consider what would happen if the Bill were passed and if, instead of seeking a judicial review in 2017, Unison did so this year and, crucially, secured the same decision: the decision that the workers were right, and that what the Government were doing was unlawful. The difference is that if this Bill is enacted, no one initiating a judicial review will have their fees refunded and no one who has already been forced to pay up to £1,200 for an employment tribunal will be refunded either, despite the court’s agreeing that they have been subject to something unlawful. Anyone subsequently requiring an employment tribunal will still have to pay the unlawful fees, and in the meantime the Government will be able to tweak the legislation and make the unlawful lawful. Who would or could go to the expense and trouble of seeking a judicial review given the prospect of no remedy, no justice, and no change in their or anyone else’s situation?
The delaying of a quashing order is, in certain circumstances, the appropriate path to follow, and that is why the courts already have that option. The issue is that it is currently an option, and the clause seeks to make it a presumption. The Independent Review of Administrative Law, which has been largely ignored in respect of its recommendations for judicial review, suggested that “giving courts the option” was enough, but here we see the Government determined to fetter judicial discretion and tie the hands of judges. Our amendment would ensure that it would once more be the case that judges “may” rather than “must” use such delays, and if the Government continue to argue that they are not trying to tie the hands of the judges, they will surely support it tonight.
James Cartlidge
The point is that these matters are entirely for our independent judiciary. The judiciary will make the judgment on whether the powers in the Bill should be used. I would not want to speculate on whether they would have been used in individual cases; that is not my role as a Minister. We have to have faith in how the judiciary will deploy what are, after all, new flexibilities—as we say, new tools in the judicial toolbox.
Let me move on to the new clauses tabled by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). New clause 8 seeks to re-establish the ouster clause, in response to a 2019 Supreme Court judgment that asserted that certain decisions of the investigatory powers tribunal would not be subject to judicial review by the High Court. My right hon. Friend knows that we are sympathetic to and see merit in what he says, but we think this is not the right Bill or time, given the complexity involved. We want to look into the matter further, though. I was pleased to discuss it with my right hon. Friend in Committee and would be pleased to meet him further.
Sir John Hayes
There are two new clauses, and I am sure the Minister is going to deal with the second one, but the issue of evidence is particularly important, as he will know. Allowing cross-examination on the introduction of new material that was not pertinent to the original decision is not about checking matters of law, but about rehearsing matters of fact and perhaps even going on a fishing expedition for new facts. On investigatory powers, he knows how important it is that the tradition maintained for 19 years is maintained and that the courts simply do not get involved in those matters.