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, 11 months ago)
Public Bill CommitteesRead Full debate Judicial Review and Courts Act 2022 View all Judicial Review and Courts Act 2022 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 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.