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.