Judicial Review and Courts Bill

Kieran Mullan Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Mr Lammy]

The hon. and learned Lady’s point has so much merit. No Governments enjoy judicial review, but the point when in government is to be bigger than that. I say to the Secretary of State that this is his opportunity to be big.

[Dr Kieran Mullan (Crewe and Nantwich) (Con)]

Is the right hon. Gentleman familiar with and has he reflected on the words of a former Labour Home Secretary, who criticised

“unaccountable and unelected judges usurping the role of parliament, setting the wishes of the people at naught and pursuing a liberal politically correct agenda of their own”?

How have those words informed his remarks today?

[Mr Lammy]

I have not reflected on that statement very much.

I was reminded recently of the importance of judicial review by the infamous “Judge over your shoulder” leaflet, which has been published since 1987 to remind civil servants of the importance of sound decision making. The leaflet advises civil servants of the importance of good governance and of making decisions effectively and fairly to avoid those decisions being found unlawful. It recognises that administrative law and, in this case, judicial review played an important part in securing good administration by providing a powerful method of ensuring that the improper exercise of power can be checked.

Frankly, that is why having effective judicial remedies is so important to maintain good governance. The threat of judicial review is a powerful tool to encourage decision makers to make decisions well and fairly. If the power of quashing orders were to be neutered in the way clause 1 seeks, not only would that leave victims of unlawful decisions without the remedy they deserve, but it would reduce the motivation for public bodies to take care when making decisions. I agree with the Law Society of England and Wales when it says that that would have a truly chilling effect on justice in this country and we must question why the Government are even considering the changes in clause 1. Those changes go far beyond what was recommended by the Government’s own independent review of administrative law. The review made no recommendation that quashing orders should be prospective only. It specifically recommended against that type of presumption.

--- Later in debate ---

[Dr Kieran Mullan (Crewe and Nantwich) (Con)]

I welcome the chance to speak in this debate as a new member of the Select Committee on Justice. We have not considered judicial review in any great detail, but we have considered court capacity, the use of virtual hearings and remote technology, and the work of coroners’ courts.

We are all aware by now of the challenges that the pandemic has caused for court capacity, but I think we can be proud of, and should recognise, the enormous efforts to ensure that our justice system across the country continued in a more robust way than in many similar jurisdictions. I thank and pay tribute to court staff for their work to enable that, and I echo the positive remarks of my hon. Friend the Member for Aylesbury (Rob Butler) about magistrates who give their time.

Of course that does not mean that we do not face a backlog, but I think we should remind the Opposition, or what is left of them—certainly their spokespeople—that the backlogs that we faced prior to the pandemic were lower than some backlogs that victims faced under the last Labour Government. Outstanding cases at the Crown court were at just over 40,000 before the pandemic; they hit 50,000 under Labour. A quick search of Hansard does not produce the outrage that we have heard today from the right hon. Member for Tottenham (Mr Lammy) or that I suspect we will hear from the hon. Member for Hammersmith (Andy Slaughter) when he winds up. They were not so bothered about it when they were in government, but they seem particularly frustrated now.

However, let us be in no doubt that backlogs are a problem and we need to bring them down. That is important, because delays in justice have an impact on victims and the innocent: importantly, we lose witnesses and victims, which ultimately means that people who should face justice do not. That is why it is right that we look at ways to innovate and do things differently if it can help with the backlog. Of course there is always risk when we do things differently, but we have to weigh it up against the injustice for those who are waiting for their day in court.

The Justice Committee heard a variety of evidence about the benefits and drawbacks of remote hearings, which are similar to the benefits and drawbacks that we have debated in relation to remote healthcare. Rightly, victims’ advocates have highlighted that for some people, remote hearings are a real challenge, so I ask the Minister to outline the steps that the Government will take to protect vulnerable groups from being inadvertently disadvantaged by remote hearings and by other changes in the Bill.

As hon. Members have said, reform cannot take place instead of investment; funding must be provided to help us to address the backlog with extra sitting days and Nightingale courts. We have seen some good progress in that regard.

Yes, the justice system has historically faced cuts, but I want to take the opportunity to remind people that those cuts did not happen in isolation. At the time, £1 in every £4 spent by the Government was borrowed; we were spending in an unsustainable way. It is easy now to criticise cuts that were made, and perhaps the balance of cuts across all the Government’s work has not been correct—that is why many of us welcome the extra spending for justice—but to make out that those were easy choices at the time and blame everything on the cuts, when we know that ultimately the Government were reacting to a situation not of their making, is not fair.

I thank the very many hard-working people who are struggling to deliver the important function of coroners’ courts and who did so over the pandemic, but I have to say that I feel concern. As we move away from full hearings, we will need some very clear routes available for decisions when people choose not to have a full hearing. The Government talk about cases being uncontroversial and simple, but I am afraid that the harsh reality we have heard from coroners’ courts is that although they are overwhelmingly conducted with care and attention to families and with open and transparent process, that is not always the case. Coroners’ courts still reflect the style and approach of individual coroners.

I would not want the measures that the Government are introducing through the Bill to have inadvertent consequences where coroners took decisions in cases that would objectively have benefited from a full hearing, or that families might feel would have benefited from one. It would be good if the Minister outlined what opportunities families might have to challenge decisions that coroners make under the new legislation.

I want to make some brief remarks about judicial review. I think we have to recognise that access to justice, in the broadest possible sense, is a public good, but too often some of those involved in the provision of this public good see it as sacrosanct, and seem to believe that there is some Utopia where demand for justice is perfectly met. They often strive for that without accepting that the provision of justice as a public good must compete for public resources alongside the provision of other public goods, such as education, healthcare and defence. It is perfectly legitimate for a Government to consider whether public money spent on judicial reviews funded by taxpayers is public money that might be better spent on other public goods—or whether it might be better spent in the judiciary on a more effective way of securing access to justice than the present system of judicial review. There might even be a simpler, better use of the courts’ time. I personally can see a vast public good in a certain fox killer having fewer opportunities to waste the courts’ time with repeated failed actions, especially given the stresses on the legal system that we have discussed.

Of course, controversies in this area of law are not new to the Chamber. We heard earlier from the Justice Secretary how the Labour Government pushed these ouster clauses and saw their merits at the time. The Refugee Council has said:

“this Bill threatens to deny asylum seekers a fair hearing of their…claim… We urge the Government to take these criticisms seriously and to act on them.”

The council was not talking about the Bill that is now before us; it was talking about the Bill that the shadow Justice Secretary attempted to steer through Parliament.

I think that we have to take a step back, and recognise that the public expect to see a balanced use of public resources in the courts across all the expenditure of public money. I am frequently appalled by the disproportionate amounts spent on legal aid for individuals to challenge decisions, including decisions made through judicial review. Does that serve the interests purely of justice? Perhaps yes, but does it represent a proportionate or justifiable allocation of public good in our society? Certainly not, and I think the British public understand that.

The hyperbole that has been expressed today about the narrow changes that are being made to judicial review undermines the credibility of the Members making those claims. We have heard from my hon. Friend the Member for Newbury (Laura Farris) and others how restricted and limited these measures are. To suggest that people who have had a couple of bites at the cherry are being denied justice because they do not have the opportunity to make one further attempt is an exaggeration that undermines those Members’ arguments.