Judicial Review and Courts Bill

Kim Johnson Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Mr Lammy]

According to the devolved settlement, that must be the case. Perhaps the Secretary of State or the Minister will address that.

“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”

Those are not my words but the words of the right hon. Member for Haltemprice and Howden (Mr Davis), who I see in his place. He has described the reforms as “un-Conservative” and

“an obvious attempt to avoid accountability.”

I will let that hang in the air of the House of Commons.

There is no legitimate need to meddle with judicial review, least of all when there are so many other pressing issues to deal with. What message does it send to the victims of serious crime in a time of crisis that the Government’s first objective is to weaken quashing orders —one of the tools available when a court finds that a public body or the Government have acted unlawfully?

[Kim Johnson (Liverpool, Riverside) (Lab)]

Does my right hon. Friend agree that the collapse of the Hillsborough trial identified flaws in our legal system and caused untold trauma to the families of the 97? Will he join me in urging the Government to bring the Bill back with amendments to include automatic non-means-tested public funding for bereaved families when public functions are involved?

[Mr Lammy]

My hon. Friend rightly raises the Hillsborough families, and she knows that, just like the Grenfell families, they have relied on judicial review. She raises that in relation to legal aid and will know that I have made such a commitment at the Dispatch Box. We will wait to see whether the Government will meet us with that important pledge on behalf of any individual facing tragedies of that sort.

The Bill seeks to make profound changes to how quashing orders work and, crucially, to what redress victims of unlawful decisions can receive from the courts. Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. The effect of that would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision.

On the face of it, that might seem to be quite a small change to judicial review, but the effects would be profound and chilling. The Government’s own consultation paper even conceded that a prospective-only quashing order would

“impose injustice and unfairness on those who have reasonably relied on its validity in the past.”

Let us look at how that would work in practice. When the Supreme Court quashed the employment tribunal fees in 2017, the effect of its declaration was that fees were identified as being unlawful from the start. Thousands of workers unlawfully denied access to justice therefore had their tribunal fees refunded. Had a prospective-only order been made, they would have been left out of pocket, despite the fees being ruled unlawful. How can that possibly be right? What would be the point of bringing a claim for judicial review, if people knew before they even started that they would be no better off? What is the purpose of judicial review if it cannot hold public bodies rightfully to account?

That is just the tip of the iceberg. As more people are left without the redress they deserve, many more will be put off bringing their own claim, even if those were perfectly valid. As a result, unlawful decisions made by the Government—by any Government, of any colour or stripe—or a public body will go unchallenged. Perhaps, however, that is what the Government want, and the right hon. Member for Haltemprice and Howden certainly seems to think so, when he argues that the Bill is simply a way for them to dodge being held accountable. We all know that the ability of members of the public to challenge public bodies is vital to maintain a country built on good governance.