Judicial Review and Courts Bill

Lord Hacking Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Hacking (Lab)]

My Lords, as I stand in this House for the first time after 22 years of absence, I was particularly touched by the words of welcome by the noble Lords, Lord Ponsonby, Lord Thomas and Lord Howard. Of course, I remember those faraway days jousting with Lord Howard in the Cambridge Union when we were at Cambridge together. This is a speech which is a kind of maiden speech but is not a maiden speech. The reason is very simple in that the maiden speech that I did make in 1972 has counted in.

Let me set the scene. It was during the Edward Heath Government, when the Leader of the House was Earl Jellicoe, the son of Admiral Jellicoe of Jutland fame. The Leader of the Opposition was Lord Shackleton, the son of the great Antarctic explorer. We had one Cabinet Minister in the Lords—Lord Carrington, Secretary of State for Defence—and Lord Hailsham, after his sojourn in the House of Commons, returned to sit on the Woolsack and gave audible asides to the Bishops, saying nothing complimentary about anybody. When the Bishops went on, on the Bench beside him, he turned to his left, to the Liberals, and gave the same asides to them. So it was that I made my maiden speech on 26 April 1972.

Rather unbelievably, when we get to April 2022 it will be 50 years since I first spoke in the House, but I remember it as though it was yesterday. The debate was on a UK population policy and was moved by Lord Vernon. On the Government Front Bench was Lord Aberdare and on the Labour Front Bench was Baroness Serota. I particularly remember Baroness Gaitskell, widow of Hugh Gaitskell, and Baroness Summerskill, who, as Edith Summerskill, was a very feisty Member of the House of Commons. The feature that I particularly remember was that they came to this House wearing rather good hats, and they were not the only Peeresses who felt that they were in a state of undress unless they came into the House with a hat. It is somewhat of a disappointment for me now to find a lot of very welcome life Peeresses but no hats at all.

I would like to take a slightly different approach from that of other noble Lords and look at the changes that have come to this House and how they impact on our work on Bills such as this one. When you have been away for 22 years you notice significant changes. The first and most welcome change is the presence of many more—and a high quality of—life Peeresses, who clearly are now major contributors to the work of this House, which provides a massive benefit. Another noticeable change is that the House is now much more proactive and busier. It has a contemporaneous Chamber, which I notice is still at business, in the Grand Committee in the Moses Room. One can identify other features of the House today, such as the much greater use of Oral and Written Questions, and the number of speakers that take part in each debate. I understand that when we got to 25 speakers for this debate a stop was put, but there would have been others if they could have listed themselves.

The other change is the number of amendments that this House moves. The Minister remembers well the Police, Crime, Sentencing and Courts Bill, which is a bit heavy to hold in the hand, and the Marshalled List of amendments, which I also hold in my head. I was interested in, and asked the Legislation Office, how many amendments had been tabled and moved on Report, and I got the astounding figure of 730.

The worry is that while it is a great achievement to get Bills such as that one through the House, it is also cascading on to the user countless new laws and cascading them on to the lawyers who must interpret them, which is not altogether easy. Take Clause 1 of the Bill. It is only when you get to Clause 1(9) and the two sentences resting beneath that you begin to understand the objective of that provision. Judges and numerous other users, such as the police, and health workers and so forth with the Health and Care Bill, have these responsibilities. I have a first cousin, now retired, who is a very distinguished professor in criminology at the University of Ottawa. He wrote a book, Less Law, More Order. I suggest that we should be thinking about that when we have any Bill such as this in front of us, because there is a grave danger that this Bill could become a victim of more law and less order.

On the Bill itself, I declare an interest. I am on the council of Justice, the legal charity that is actively involved in access to justice and the presentation of justice. I will leave all comment on Part 2, which can be done in Committee. However, as do other noble Lords, I have a grave concern over Part 1. As a matter of principle, we should not be providing a statutory block in the judicial review appeal processes as identified, many of them being asylum and immigration appeals. These people are the most vulnerable people entering our courts system. As Lord Dyson said in Cart:

“In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”


I hope very much that when we get to Committee and Report we recognise that in the processes which now exist, and through the First-tier Tribunal and the Upper Tribunal, meritorious applications do get further consideration and the non-meritorious applications are dismissed. For those practical reasons, we need not interfere with the structures that are now in place, particularly under the Tribunals, Courts and Enforcement Act 2007. We are taking a step back if we start interfering with that.

Judicial Review and Courts Bill

Lord Hacking Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Pannick (CB)]

That is a very important point. If the noble and learned Lord, Lord Etherton, brings back his amendment on Report, as I hope he will, he may wish to add in a provision along the lines of what we see in relation to criminal matters and under the Administration of Justice Act: that if the judge or the Supreme Court certified that it was a matter of public importance, either the judge or the Supreme Court could give permission for the matter to go straight to the Supreme Court. The judge at first instance may throw out the point, but may nevertheless recognise that it is a point of some significance that perhaps the Supreme Court may wish to consider.

[Lord Hacking (Lab)]

My Lords, I apologise for the croak in my voice. As two noble Lords have already recognised, the ultimate issue in this batch of amendments is whether Clause 2 remains part of the Bill. Therefore, we should look with some precision at the Bill. Proposed new Section 11A(2) states in respect of the decision of the Upper Tribunal:

“The decision is final, and not liable to be questioned or set aside in any other court.”


That means that any appeal from the Upper Tribunal will now be forbidden. There is a proviso a little further down, in new subsection (4), which can be summarised as “if the Upper Tribunal has behaved improperly or ultra vires”, and there lies an exception, but it is a very strong provision in new subsection (2), as inserted by Clause 2.

At Second Reading, which was the first time I addressed this House after 22 years, I made two points on that issue. I said that, as a matter of principle, it was wrong to shut this out of the judicial process, because no appeals would actually go into the judicial process of our law courts. I argued that it was as a matter of principle wrong, because many of the applicants concerned—and this provision will absorb all the asylum applicants—are among the most vulnerable people who will ever want access to our courts. I argued, secondly, that the processes already in existence were good enough to pick out the unmeritorious applications, which far exceed in number the meritorious applications and which will find no further favour through the judicial process.

Therefore, we should look quite precisely at the decision-making as it now stands. We move from the Home Office decision—asylum or not asylum—to the First-tier Tribunal, then to the Upper Tribunal and then, in limited circumstances, to the single judge, who will make a decision on paper. We then move to an oral hearing, which I think will be in front of the Court of Appeal, and a journey, or a door, into our judicial process. What are the limitations in the present system, which I say are sufficient to sort out the difference between the meritorious and the unmeritorious application?

On the first issue, on the rules relating to the first tier, all issues of fact and law are to be considered by the First-tier Tribunal—but once it has made its decision, there are great limitations on the rights of appeal, and the right to appeal from the First-tier Tribunal is only on errors of law and on the permission of the Upper Tribunal. Of course, that throws out something that is very important, which is any further consideration of the merits of the application. When the matter goes to the Upper Tribunal, there are much more severe restrictions; it is only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reasons. That then brings us, if that can be satisfied, and the law courts accept it, to a single judge—and then it is very limited, with only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reason.

Judicial Review and Courts Bill

Lord Hacking Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I do not want to repeat anything that the noble Baroness, Lady Chakrabarti, said in her moving contribution earlier, nor anything said by the noble Lord, Lord Thomas of Gresford, but perhaps I can remind the Minister that we are talking about people who do not have much money and are often in the worst position of their lives, in that they have lost somebody whom they loved very deeply. They are not at a point in their lives where they can cope with the sort of the pressure that the Government are making happen to them. Honestly, the Government are so penny-pinching when it comes to things like this—and student education; indeed, any number of other things—yet they do not make multi- nationals pay their taxes. I do not understand why we ever think that Conservatives are good at running the economy; I think that they are rubbish.

Every death in custody, of any sort, means that a family is bereaved. They may therefore not be thinking clearly and may be extremely upset. For them, the injustice is perpetuated and they are re-victimised because the inquest system is unable to give them the sort of justice they need. Without equality of arms against state parties, effective justice is extremely difficult to achieve. These issues come up time and again; the arguments are well rehearsed. The Government have access to unlimited public funds to instruct the very best lawyers, while the bereaved must navigate complicated legal aid applications in the vague hope that they might be awarded a scrap of money towards their legal costs. It just sounds so mean. It is absolutely mean of the Government. Far too often, the outcome is that inquests and inquiries are seen to have resulted in a damage limitation exercise—an exercise in saving reputations and finding excuses.

I had a grandfather who was killed in the Senghenydd mining disaster. Some 440 men and boys were killed in 1913. The mine owners were brought to court on various issues and paid a total of five and a half pence for every life lost in the mine. This debate reminds me of that: we just do not understand the sort of pressure that we put on people when we do not allow them the legal means to achieve what they need to achieve. It is a bit like the Sue Gray report. Everybody is told that they have to wait until the inquiry is finished but there is another excuse and another delay until, possibly years later, the authorities and everyone have simply forgotten about it.

Here, of course, we all want justice to be done. We all want life to be fair—that is why I am in politics, anyway—but these proposals are not fair. I really hope that the Minister will meet Inquest members because they can give him a first-hand understanding of the pressure and pain that families experience. Justice will not be seen to be done until families are given automatic, non-means-tested legal aid on a footing equivalent to that provided to state parties.

[Lord Hacking (Lab)]

My Lords, if noble Lords will permit me, I would like to make a short intervention. I have not taken part at all in the debates on Part 2 because I wanted to find my feet more in this House. I do so as a member of the council of Justice and, until recently, president of the Civil Court Users Association. I certainly intend to get further involved on Part 2 when we get to Report.

To go back to what the noble Lord, Lord Thomas of Gresford, said, in the mists of time I was called to the Bar in 1963, and in the 1960s and 1970s, legal aid was one of the most socially important provisions that the Labour Government of 1945-51 had brought in. The other one, of course, was the National Health Service and it has been treading backwards ever since that Labour Government went out of power. It is very sad. I remember sitting on a lot of legal aid cases. The problem with legal aid cases was not the lack of spread of legal aid; it was the slowness of the fees coming in. Sometimes they took 18 months or two years to come in, but they did come in and they were very highly supportive of those involved in legal aid. As we see now, particularly in our discussions of coroners, legal aid is no longer supplying the social need that it set out to do, successfully, in 1945. It gets ever more depressing that there is not further support or further money available to support legal aid now, in our present age of the 2020s.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group, Amendments 47, 48 and 49, would introduce three new clauses on legal aid for inquests. Let me make two points right at the start. First, we have now heard about two colliery disasters. The Gresford disaster was something that my late grandfather used to talk about, although he was from south Wales and not north Wales. As a boy, and I have just been looking it up, one thing that stuck with me when he talked about it was the numbers: 266 people were killed in that disaster. Only 11 bodies were recovered because of the understandable, albeit controversial, decision to seal the districts. I remember as a young boy hearing him talk about how that added immensely to the grief that the families went through, because there was no body to bury. I was very moved, if I may say so respectfully, by the noble Lord’s reference to that.

Secondly, as a matter of introduction, it has been suggested by a number of noble Lords that I should meet Inquest. I hope I have established that my general approach is to meet anybody who reasonably wants to meet me. I would be very happy to meet Inquest; I will ask my office to arrange that. Of course, I am sympathetic to the difficulties facing all bereaved families. We certainly take the view that the bereaved family should be at the heart of any inquest process that follows a death. I set out on a previous group, and I will not repeat, the inquisitorial point: I know that is an issue on which we are not going to agree, so I just ask the Committee, respectfully, to take that as read.

It is against that background that I suggest that Amendments 47 and 49, which seek to expand access to legal aid at inquests, run counter to that approach. There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the majority of cases, prolong the distress of a bereaved family. I think it is important to recognise in this area that for every inquest such as that for Hillsborough—the Committee will appreciate that with my background I remember Hillsborough and I remember that night, as the news came in, very clearly—for every awful case like Hillsborough, there are thousands of, so to speak, normal, usual inquests up and down the country and we want to make sure that they remain inquisitorial. However, we recognise that inquests need to be a process that bereaved families can engage with properly. We have introduced a number of measures in this area; let me set out a few.

We have engaged with the Chief Coroner on training for coroners and their investigating officers; we have published new guidance on coroner services for bereaved people; we have developed a protocol which, among other things, ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach; we have, building on the protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September last year.

Turning to legal aid and legal advice and assistance: for bereaved families who need advice and assistance, legal help is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask.

For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme, where certain criteria are met. Where those criteria are met, the Government are of the view that the process should be as straightforward as possible. I do not know whether Members of the Committee have picked this up, because it is very recent, but as of January this year there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted. I appreciate that does not go as far as the amendment, but I hope it indicates that the Government have considered this and moved in this area.

Amendment 48 seeks to remove the means test for legal help prior to an inquest hearing. I have just said that as from January there is no means test for legal representation granted under the exceptional case funding scheme. This change will also provide non-means-tested legal help in relation to an inquest for which exceptional case funding has been granted for legal representation.

I hope that Members of the Committee are aware that we have been conducting a review of the legal aid means test as a whole across civil legal aid, which has been a substantial piece of work. I cannot give a date, but I hope that the review will be published very shortly. It might not go back to the position which the noble Lord, Lord Hacking, set out, but I hope that when Members of the Committee see the review, they will be interested in it and that it will engender some broad support.

[Lord Hacking (Lab)]

Bravo, bravo!

[Lord Wolfson of Tredegar (Con)]

The noble Lord has not read it yet, but I will take the bravos in advance in case I get brickbats later. I hope it will be a piece of work which will find support. Given that ongoing work and while recognising there is a point of principle between us—I absolutely accept that—none the less, for today’s purposes, I respectfully invite the noble Baroness, Lady Chapman, not to press the amendments.

Judicial Review and Courts Bill

Lord Hacking Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.

[Lord Hacking (Lab)]

My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?

[Lord Wolfson of Tredegar]

My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.

More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.

Amendment 29 agreed.

Clause 49: Extent

Amendments 30 and 31