Judicial Review and Courts Bill

Debate between John Hayes and Sally-Ann Hart

Report stage
Tuesday 25th January 2022 Commons Chamber

[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—