Judicial Review and Courts Bill

Lord Etherton Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Etherton (CB)]

My Lords, it is a great privilege for me as a relatively new Member of this House to follow such a long-standing and distinguished person as the noble Lord, Lord Hacking. I am very pleased to do so.

In my five minutes I would like to deal with four matters. The first is quashing orders. It is advantageous for the court to have the remedies open to it increased. The problems here arise under the mandatory provisions of Clause 1(9). There are two problems, in my view: first, that there is no need, and it is unhelpful, to circumscribe the discretion of the court; and, secondly, that it will be unclear in many cases how the court should apply the phrase

“would as a matter of substance offer adequate redress in relation to the relevant defect”.

I predict that there will be a plethora of satellite litigation and appeals in relation to the court’s approach to those words in many cases.

The second matter is the abolition of the Cart jurisdiction. This area of consideration is bedevilled by the lack of published statistics. Based on my own experience as Master of the Rolls and Head of Civil Justice for over four years until January last year, I agree with the IRAL report of the noble Lord, Lord Faulks, that the Cart judicial review jurisdiction has been abused in many cases.

The filter on abusive cases should—and, I assume in the absence of any specific published statistics, would—be dealt with at the stage of permission to apply for judicial review. That is dealt with, or can be dealt with, on paper, and if permission is refused, there is no right for the applicant to renew the application at a substantive hearing of the judicial review.

What concerns me particularly, from my own experience, is that if the Cart jurisdiction is unsuccessfully invoked, at that stage or subsequently—the leave stage or the substantive hearing—the matter rarely terminates with the administrative court of the Queen’s Bench Division. Inevitably, the applicant will then seek permission to appeal to the Civil Division of the Court of Appeal, either from the refusal of permission to bring judicial review proceedings or from the dismissal of any substantive application. I rely on my own experience and knowledge to say that the success rate of applications to the Court of Appeal for permission to appeal is minuscule and diverts the Civil Division of the Court of Appeal from addressing other appeals, which causes delay and so injustice and imperils the international standing of the court. So, there are, in fact, false potential stages to consider when considering whether permission to appeal should be given back at the tribunal stage.

What is to be done about this? The noble Lord, Lord Ponsonby of Shulbrede, points out that there are cases where injustice would result from a refusal of a Cart review. A middle course, which I ask the Government to consider carefully, would be to retain the judicial review jurisdiction of the Queen’s Bench Division but provide that there shall be no appeal to the Court of Appeal from either the refusal of permission to bring judicial review proceedings or an unsuccessful substantive application.

Thirdly, on the Online Procedure Rule Committee, it will be many years before full digitisation of court processes. Even then, it is likely that many cases will be excluded from online procedures, whether because of litigants in person, the inability of one of the parties to master digital processes, the nature of the case, or other reasons. Co-ordination between standard rule-based proceedings and online processes is currently achieved by both of them falling within the remit of the Civil Procedure Rule Committee, the Family Procedure Rule Committee, the Tribunal Procedure Committee, or the stand-alone digital steering committee, which I set up, between all of which there is an overlap in membership. The provisions of the Bill dealing with online rules and the establishment of the Online Procedure Rule Committee contain no express provisions to ensure co-ordination of any kind with the standard civil, family and tribunal rule-making committees. I suggest that consideration be given to amending the Bill to facilitate such co-ordination.

My final point is on pro bono costs. I am grateful to the Minister for sympathetic consideration of my proposal to include in the Bill a provision to amend Section 194 of the Legal Services Act 2007 to enable tribunals, as is currently the case in the civil court, to order an unsuccessful, legally represented party to pay pro bono costs to the Access to Justice Foundation, where the successful party has been represented pro bono. I will bring forward an appropriate amendment in Committee.

Judicial Review and Courts Bill

Lord Etherton Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,

“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”

It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.

I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—

“offer adequate redress in relation to the relevant defect”—

worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those

“who would benefit from the quashing of the impugned act”

and those who had expectations and

“relied on the impugned act”.

There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.

[Lord Etherton (CB)]

My Lords, as the noble Lord, Lord Anderson of Ipswich, indicated, I am happy to join myself with the amendment. Both the Law Society and the Bar Council oppose the inclusion of proposed new subsection (9), as do many others and for very good reasons. It is worth pointing out at the outset that the provision is not based on any recommendation of the Independent Review of Administrative Law headed by my noble friend Lord Faulks. To my mind, this part of new Section 29A is the critical provision because it colours the appropriateness or otherwise of what has gone before: in particular, the powers under the proposed new subsection (1)(a) and (b). It is objectionable, I suggest, for three reasons: it is unnecessary, it is wrong in principle, and it is potentially dangerous in practice.

It is unnecessary because proposed new subsection (8) sets out a comprehensive list of matters to be taken into account by the court, including, most importantly under (f)

“any other matter that appears to the court to be relevant.”

There is simply no need for any other guidance or mandatory direction to the court if the courts are to be left to choose the most appropriate remedy to right the wrong that has been committed. A problem would arise only if what is intended is that in certain circumstances the judge should not be left to choose the most appropriate remedy but one of the other quashing remedies to be found in the proposed new subsection (1).

As I understood the Minister’s answer to a point raised by my noble Lord, Lord Pannick, if the judge feels it would not be appropriate to impose a quashing order, notwithstanding the trigger in proposed new subsection (9) that would

“as a matter of substance, offer adequate redress”,

because the judge felt there would be injustice, that would be good cause. Well, if the judge feels that the appropriate remedy in all the circumstances to remedy the wrong committed by the public body is different from the quashing orders in proposed new subsection (1)(a) and (1)(b), that would be an injustice. So one asks oneself, “What on earth is the point of it all?” since the answer given by the Minister that I have just mentioned indicates that what one is left with is a free-ranging discretion to be applied in an appropriate judicial manner, having regard to all the circumstances to rectify the wrong that has been committed. So I am afraid I am left at a loss to understand exactly what it is that makes the proposed new subsection necessary or logical.

I have also said that proposed new subsection (9) is dangerous and wrong in principle. First, it provides a precedent for interference by the Executive with judicial discretion. In effect, it politicises the exercise of judicial discretion in carrying out the judicial function of selecting the most appropriate remedy to right, so far as possible, the wrong that has been committed.

Secondly—a point I raised at Second Reading—the trigger for the mandatory direction in proposed new subsection (9), that the court must exercise its powers under subsection (1), the new quashing powers, if that would

“as a matter of substance, offer adequate redress”

is bound to be the subject of dispute and appeals. It introduces a hard-edged objective test, quite different from the judge’s discretion, which will enable disappointed litigants an opportunity to litigate and appeal further, and that surely is something we must avoid if possible.

--- Later in debate ---

Unless the judicial review judge thinks there is something of merit in the complaint, it should be and will be thrown out very swiftly. Or to adopt the amendment of the noble Lord, Lord Etherton, Amendment 23—which I hope he will speak to—would, as I understand it, make final a decision of the court of supervisory jurisdiction, thereby preventing any appeals. There are ways of dealing with the problem that does not involve preventing a litigant who does have a valid complaint, who can raise a substantial issue of law of a fundamental nature, and who is threatened with removal to another country where he or she is going to be persecuted or tortured from having the opportunity to make their complaint by way of judicial review. So, I agree with the noble and learned Lord, Lord Falconer. I too take the view that Clause 2, as presently drafted, is inappropriate.

[Lord Etherton (CB)]

My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists.

Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court.

The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief.

In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated.

The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court.

At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges.

Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days.

The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.

[Lord Thomas of Cwmgiedd (CB)]

May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.

I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.

Judicial Review and Courts Bill

Lord Etherton Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

Moved by

[Lord Etherton]

51: After Clause 45, insert the following new Clause—
“Pro Bono Representation: TribunalsPayments in respect of pro bono representation: tribunals
(1) Section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation) is amended as follows. (2) In subsection (1) after “civil court” insert “or tribunal”.(3) In subsection (3)—(a) after “the court” insert “or tribunal”; and(b) after “in respect of that part)” insert “, but so that no award made under this subsection may exceed the amount that the court or tribunal could order to be paid in respect of R’s representation of P, had such representation not been provided free of charge in whole or in part”.(4) In subsection (4) after “the court” insert “or tribunal”.(5) In subsection (5) after “the court” insert “or tribunal”.(6) In subsection (7)—(a) after “Rules of court” insert “and tribunal rules of procedure”;(b) omit the word “civil”; and(c) after “the court” insert “or tribunal”.(7) In subsection (10)—(a) in the definition of “legal representative” for “exercising a right of audience or conducting litigation on the party's behalf” substitute “, who has a right of audience or has the right to conduct litigation in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts, whether or not the person is exercising such right in the particular proceedings”;(b) in the definition of “relevant civil appeal”, after paragraph (a) insert—“(aa) from the Upper Tribunal in accordance with permission granted under section 14B(3) of the Tribunals, Courts and Enforcement Act 2007 (appeal to Supreme Court),”; and(c) after the definition of “relevant civil appeal” insert—““tribunal” means—(a) the First-tier Tribunal;(b) the Upper Tribunal;(c) an employment tribunal;(d) the Employment Appeal Tribunal;(e) the Competition Appeal Tribunal; and(f) any other body, established under or recognised by any enactment, which performs the function of determining matters, which are not criminal in nature, including but not limited to regulatory and disciplinary issues, and which has the power to make an order for the payment of costs.””Member’s explanatory statement
These new provisions will confer on tribunals the same power as civil courts and the Supreme Court currently have to order an unsuccessful legally represented party to pay pro bono costs to the prescribed charity the Access to Justice Foundation where the successful party has been represented pro bono.

[Lord Etherton (CB)]

As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.

We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.

On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.

[Lord Wolfson of Tredegar (Con)]

My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.

I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.

As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.

There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.

Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.

[Lord Etherton (CB)]

I think there is nothing more to say. I am very grateful to the Minister for those indications, and on that basis, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Judicial Review and Courts Bill

Lord Etherton Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.

This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that

“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,

and of new subsection (5), which says that

“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.

I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.

Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.

That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.

Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.

It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.

That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),

“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

The Minister’s only answer to this conundrum in Committee was that it was

“almost incomprehensible that a court would use”

the power

“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]

That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.

In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right

“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”

We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.

Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.


I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.

This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.

I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered

“in relation to the relevant defect”,

the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.

[Lord Etherton (CB)]

In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.

Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.

In Committee, the Minister said that subsection (9) is not a presumption in the sense of

“trying to fetter judicial discretion or to steer … the courts to a particular decision.”

He said that it will be

“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]

and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.

One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).

Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders

“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.

That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.

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Moved by

[Lord Etherton]

4: Clause 1, page 2, leave out lines 24 to 32
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or prospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.

[Lord Etherton (CB)]

I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Etherton]

5: Clause 2, leave out Clause 2 and insert the following new Clause—
“Limitation of review of Upper Tribunal’s permission-to-appeal decisions
(1) In the Tribunals, Courts and Enforcement Act 2007, after section 11 insert—“11A Finality of decisions in exercise of the supervisory jurisdiction(1) Subsection (2) applies in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).(2) Subject to subsections (3) and (4), a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.(3) An appeal lies to the Supreme Court from any such decision of the court of supervisory jurisdiction but only with the leave of the court of supervisory jurisdiction or of the Supreme Court; and such leave may not be granted unless it is certified by the court of supervisory jurisdiction that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court.(4) An application to the court of supervisory jurisdiction for leave to appeal to the Supreme Court must be made within the period of 7 days beginning with the date of the decision of the court of supervisory jurisdiction and an application to the Supreme Court for such leave must be made within the period of 7 days beginning with the date on which the application is refused by the court of supervisory jurisdiction.(5) In this section—“decision” includes any purported decision;“supervisory jurisdiction” means the supervisory jurisdiction of—(a) the High Court in England and Wales or Northern Ireland, or(b) the Court of Session in Scotland,and “the court of supervisory jurisdiction” is to be read accordingly.”(2) The amendment made by subsection (1) does not apply in relation to a decision (including any purported decision) of the Upper Tribunal made before the day on which this section comes into force.”Member’s explanatory statement
These amendments retain the Cart supervisory jurisdiction but, subject only to a limited right to apply for permission to appeal to the Supreme Court, bar any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise.

[Lord Etherton (CB)]

This amendment is supported by the Law Society, the Bingham Centre for the Rule of Law and the Public Law Project.

Amendment 5 is intended to strike a middle course between, on the one hand, the abolition of the Cart supervisory jurisdiction of the High Court in England and Wales, and the Court of Session in Scotland, subject only to the three exceptions specified in proposed Section 11A(4) of the 2011 Act, and, on the other hand, the full retention of the existing Cart supervisory jurisdiction. My amendment would maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from a refusal of permission to appeal or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court, such as interim relief. The one exception is that following a debate in Committee, and at the suggestion of the noble Lord, Lord Pannick, the amendment now provides for an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal. My amendment provides for a very short timetable of seven days for an application for leave to appeal.

My amendment would curtail the amount of judicial time currently spent on hopeless Cart cases. In one important respect, it would impose a more restrictive regime than that in Clause 2, as it does not make any exceptions as are to be found in subsection (4). Those exceptions give rise to concern, as it can be predicted, particularly in immigration and asylum claims where the objective is often to string out matters for as long as possible, that many applicants will claim to fall within one or more of the three exceptions, even if hopeless, and the High Court would have to adjudicate such claims, and with a right to apply to the Court of Appeal for permission to appeal.

Critically, retaining the restricted supervisory jurisdiction, as proposed in Amendment 5, would help to avoid injustice. The Ministry of Justice’s best estimate, based on the nine years from 2012 to 2020, is that the Cart jurisdiction has been successfully invoked in between 40 to 50 cases on average each year, and on being remitted to the Upper Tribunal for reconsideration of permission to appeal, the overwhelming majority are then given permission to appeal.

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[Lord Etherton (CB)]

I should like to make three essential points by way of reply to what has been said. I am extremely grateful to those Members of the House who have supported my amendment.

The noble Lord, Lord Faulks, highlighted what is for him, and I think in government policy terms, critical: that it is said that the success rate is too low. This raises the question: at what price do we value justice? We are agreed that 40 to 50 cases each year have been wrongly refused permission to appeal by the Upper Tribunal. In the case of severely important asylum claims and human rights cases, those 50 cases represent all the trauma that is gone through by a complainant. If one has sat in court and listened to the stories of people who have made the most extraordinary efforts to get to this country, seeking asylum, going from place to place trying to get here, one will know that refusal of a Cart review as one of the 50 is a real denial of justice.

Yes, there are very many cases—too many cases; we are all agreed on this—of unmeritorious applications by way of Cart, but we have to find a balance which takes into account the injustice that will be suffered by even one person, let alone 50 people, in these most serious of cases which involve such a long time and, in many cases, severe trauma.

There are those who, like Micah, recall the admonition: “Justice, justice you shall pursue”. That is what I have spent my entire career attempting to do, particularly as a judge. I do not accept that the middle course is paying too high a price for the justice that would otherwise be denied to the categories of people for whom I have been speaking. My presentation—my middle course—is for those people who would otherwise suffer.

My last point is this. Attractively though the Minister has put it, that there are three bites of the cherry is not entirely correct. The modern method of appeal from tribunals is an appeal from a decision in an asylum case from the Lower Tribunal, then to the Upper Tribunal and then to the Court of Appeal. On his analysis, the Court of Appeal hearing would be a third bite of the cherry, but that is standard procedure. I do not accept that a third review of tribunal cases is in any way unusual. I wish to test the opinion of the House.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.

There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.

In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.

There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.

[Lord Etherton (CB)]

My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.