Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by welcoming back to this House my noble friend Lord Hacking. He last spoke in this House on the Contracts (Rights of Third Parties) Bill. I thought I might read out his final paragraph:

“Finally, some noble Lords have noticed that I am sporting an enormous black eye. As no one appears to have accepted my domestic explanation for it, and as a number of theories have been developed among noble Lords to whom I have spoken, perhaps I may put on record that I have not been whopped by an angry hereditary Peer who failed in the ballot! On the contrary, I believe that all hereditary Peers are seeking to leave this House with great dignity, and I am sorry that my own appearance is a little undignified.”—[Official Report, 10/11/1999; col. 1363.]


I welcome my noble friend’s return to this House.

Although the Labour Party welcomes elements of this Bill, it does not support the judicial review measures proposed in it. We would support removing them entirely. We believe that the Ministry of Justice is trying to fix something that is not broken. The Government should be spending their time tackling the record court backlog, protecting victims of serious crime and strengthening community-based sentences.

The Government’s reforms go beyond what was recommended by their own expert panel, with no evidence to back up this overreach. The Independent Review of Administrative Law, chaired by the noble Lord, Lord Faulks, did not recommend prospective-only remedies, a presumption for suspended quashing orders, imposing on the courts a list of factors to determine their use, or ouster clauses.

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. As a result, courts would 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 quite a small change to judicial review, but we believe that the effects could be profound and chilling.

Numerous organisations, such as the Public Law Project, Friends of the Earth and the Law Society, are concerned that the statutory presumption in Clause 1 seeks to remove swathes of government decision-making from challenge via judicial review, and to limit the effectiveness of remedies granted to those challenges that are successful. The Government’s own consultation paper conceded that a prospective-only quashing order would

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

I shall also quote some points raised by the Public Law Project, which has said that the statutory presumption would, first,

“place victims of unlawful actions in an unfair position; remedies which are prospective only may leave individuals without redress at all.”

Secondly, it said, these remedies would

“insulate Government from scrutiny and make it more difficult for decision makers to be held to account.”

Thirdly, they would

“make it more—rather than less—likely that judges will be forced to enter the political realm.”

Fourthly, they would remove the current simplicity of quashing orders and make it more difficult, and costly, to bring a judicial review claim. Fifthly, they would shift the scales of justice too far in the direction of the Executive at the expense of the individual.

Clause 2 of the Bill would abolish Cart—or, in Scotland, Eba—judicial reviews. These are most often used in serious asylum and human rights cases. We believe that Cart is a vital safeguard against incorrect decisions made by the Upper Tribunal. There is already a high threshold for bringing them and the proposed saving is tiny compared to the human cost of abolishing them. The Labour Party is also concerned that the Government will use abolishing Cart judicial reviews as a precedent to abolish other types of judicial review in the future.

At the consultation stage of the review of administrative law, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review had been used to put right an incorrect decision made by the Upper Tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive life-saving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals would face persecution or their lives would be put at risk. The same applies to other kinds of cases heard in the tribunal system, such as cases about access to benefits for disabled children. The Government have recognised in their impact assessment that the majority of those affected by this change will be those with protected characteristics.

Part 2 of the Bill consists of five chapters, which contain provisions relating to criminal procedure, online procedure, employment tribunals, coroners and other court provisions. Many of the measures contained here were previously in the 2017 Prison and Courts Bill, which fell at the Dissolution of Parliament. In general terms, we are in favour of measures that make our courts more accessible, fairer and, if appropriate, more cost-effective. I remind the House that I sit as a magistrate in London and, over the past two years, I have done my fair share of remote hearings in the adult jurisdiction, including single justice procedures, and in the Family Division. I have also done youth hearings where we have had to make difficult decisions about the appropriateness—whether for the victim or the defendant—of proceeding with a remote hearing. So, I do understand the practicalities and limitations of working remotely.

The amendments that we will put forward for this part of the Bill will focus on improving safeguards for young people and vulnerable people, and on preventing people inappropriately pleading guilty online without properly understanding the implications of their plea. It is a real fear that, to make life simple, people will just plead guilty to get the issue out of the way. We also support publicly funded legal representation for bereaved people at coroner’s inquests and we will move amendments to this effect at later stages of the Bill. I also welcome the increased sentencing powers for magistrates’ courts for either-way offences, from six months to 12 months for a single charge. I cannot help noting that, if this measure had been introduced at the beginning of the pandemic, it might have partially ameliorated the current Crown Court backlog.

In conclusion, the Government’s proposed changes to judicial review would deter members of the public from bringing claims against public bodies and leave victims of unlawful actions without legal redress. Governments may, at times, find judicial review to be inconvenient, but that is no justification for attempting to avoid judicial scrutiny. As the Opposition, we will oppose Part 1 of the Bill but will work to improve Part 2. I thank the Minister for introducing this legislation.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

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

It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.

The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the opening remarks of the noble Lord, Lord Marks—I too enter this discussion with some trepidation. I will first set out the Labour Party’s overall view, since the debate on this group has been fairly wide-ranging. We believe that the proposals for judicial review in Clauses 1 and 2, which we will come to in group 4, are regressive and uncalled-for. More especially, when many aspects of the justice system are in crisis, we do not believe that there is a need for this review in the first place. The Ministry of Justice is trying to fix something that is not broken, a point made by the noble Lord, Lord Beith. We believe that overall, the Government’s changes to the judicial review process will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without redress. These are proposals that will make it harder for individuals to hold this Government to account. As a result, unlawful decisions made by this Government, or by any government or public body, will go unchallenged.

I put my name to Amendments 1, 4 and 5. The noble Lord, Lord Pannick, as ever, introduced those amendments very fully. The noble Lord, Lord Anderson, asked me about Amendment 3. In my brief, I am embarrassed to say, it says that Amendment 3 is consequential on Amendments 1, 4 and 5; I have had a look at it while the debate has been progressing, and I cannot add any more to that. It may be that what I have been provided with is wrong in that respect.

Amendment 6 would, as set out in the explanatory statement,

“protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings. This would prevent individuals from being criminalised under defective and illegal ministerial powers.”

The noble Lord, Lord Faulks, said that he did not think that the problem existed. It would be very useful if the Minister could confirm that he too does not think that the problem exists, because, in a sense, it is an inquiry about whether there is any potential for this problem existing. It would be helpful if the Minister were to confirm what the noble Lord, Lord Faulks, has said.

My noble and learned friend Lord Falconer entered into a very interesting debate with the noble and learned Lord, Lord Hope, about the development of suspended quashing orders through common law and whether that was appropriate. My noble and learned friend was very much against proposed new subsection (1)(b); he thought it was quite wrong to give power to judges to, effectively, change the law unilaterally and retrospectively. He argued very strongly that that was not the case.

That point was dwelled on by a number of noble Lords. It is not the point, really, that comes out in this group. We may return to some of the elements which were discussed on that point, but as I said, I enter this discussion with some trepidation, as I understand the amendments in my name—Amendments 1, 4 and 5—much more clearly. We will be debating further amendments to quashing orders in the next group, where we can further look at other prospective amendments. For now, I lend my support to the amendments in the name of the noble Lord, Lord Pannick.

[Lord Wolfson of Tredegar (Con)]

My Lords, the previous two contributors to the debate noted that they spoke on these matters with some trepidation. In responding to the amendments in this group, I declare a non-interest: unlike so many of your Lordships, I confess that I did not sit on, or even appear in, any of the various cases cited to the Committee. Therefore, with that significant handicap, I will instead start by reminding the Committee of the rationale for including Clause 1 in the Bill. However, in these remarks I will not address the list of factors in subsection (8), or the so-called presumption in subsection (9), because we will deal with those in later groups.

The clause aims to expand the remedies available in judicial review proceedings to provide more flexibility to the courts. As I put it at Second Reading, we want to put another couple of remedial tools into the judicial toolbox so that they can be used when appropriate. I say to the noble Baroness, Lady Jones of Moulsecoomb, that this has nothing to do with dismantling judicial review or an elective dictatorship. The Government and I recognise the importance of judicial review to good government, which is lawful government. But one also has to recognise that, as the noble and learned Lord, Lord Hope of Craighead, reminded us, we have lots of different sorts of cases where we want flexibility of remedy—and that judicial review applies to many decision-makers who cannot sensibly be described as “government” in the way that the noble Baroness was using that word.

The current position is that quashing is typically both immediate and retrospective, depriving the decision of ever having had legal effect. It is as if the decision had never been made; it is a legal nullity. This makes a quashing order something of a blunt instrument, and it can have unintended consequences when applied to nuanced problems.

The clause seeks to give the court a discretion to change quashing orders in two ways, as we have heard. The first is to allow the effects of a quashing order to be suspended for a period, as the court sees fit. The Independent Review of Administrative Law—I listened very carefully to the contribution of its chair, the noble Lord, Lord Faulks—recommended this additional remedial flexibility, and the clause therefore seeks to implement its recommendation. I agree with the noble Lord that the word “may” is critical to the way that this clause operates. The suspended quashing order allows courts to suspend the effect of an order for a period of time to allow the decision-maker to prepare for the effect of the quashing. This could give them time lawfully to make a new decision before the unlawful decision is quashed or to implement some other transitional arrangements.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, which aims to remove the whole clause, would remove this new remedy, which I had thought was broadly supported. Although I heard the noble and learned Lord, Lord Falconer of Thoroton, say, “If the judges want this power, they can create it”, we have heard that it is far from clear, to put it at its lowest, that the common law would actually enable the judges to do this. More importantly, there are circumstances where suspending a quashing order will allow the court to provide a remedy that better serves the interests of justice, and we should therefore ensure that it is a tool available to the courts.

The second modification, which would be removed by Amendment 1 and the consequential Amendments 4 and 5 in the name of the noble Lord, Lord Pannick, is the ability to make a quashing order prospective only. I accept that that has been more controversial in the Committee this evening, so I will set out some of the parameters of the debate, as the Government see it.

We have heard examples from those in the other place, and indeed from some noble Lords this evening, where, prima facie, a prospective quashing order could cause significant injustice to the claimant, the applicant or third parties. There will be cases where a prospective quashing order could cause injustice, which is why we are not forcing the courts to use the powers in any case where it would cause injustice or, indeed, be inappropriate. Therefore, I suggest that we leave those discussions aside, because there is remedial flexibility, and concentrate on whether prospective orders make sense in principle, given the wide variety of cases that come before the courts. We could therefore answer the question: are there cases in which their use could be appropriate?

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

Amendment 2, not moved?

[Lord Ponsonby of Shulbrede (Lab)]

No, I am moving Amendment 2.

Amendment 2

Moved by

[Lord Ponsonby of Shulbrede]

2: Clause 1, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to my various amendments quite briefly, because while the detail of the amendments has not been covered, the overall debate around quashing orders has.

Amendment 2 seeks to limit the use of any new remedies issued under Clause 1 to where, in the court’s view, it is in the interests of justice.

Amendment 7 clarifies that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.

Amendment 8 removes one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. The removal of this factor is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.

Amendment 9 would make an addition to one of the factors to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration.

Amendment 10 would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.

Amendment 11 would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken. Such actions are too uncertain to form a basis for suspending a quashing order or making it prospective only. Any intentions indicated to the court could change in light of subsequent developments, leaving those affected potentially without any recourse.

The intention behind Amendment 12 is to clarify that the principle of good administration includes the need for administration to be lawful. The Executive and all public bodies are not entitled to act unlawfully. Therefore, in a society based on the rule of law, administration may rationally be categorised as fully good only when it is lawful.

Amendment 15 removes the extra weight which would otherwise be given to subsection (8)(e) by the courts when applying the test created in subsection (9)(b) to establish whether the statutory presumption is applicable.

This range of amendments looks at other aspects of Clause 1. I think we had a wide-ranging debate about Clause 1 in the first group, and I beg to move Amendment 2.

[The Deputy Chairman of Committees (Lord Lexden) (Con)]

I apologise for getting things into a state of confusion—or nearly—by thinking that Amendment 3 was to be moved.

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[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord. I was going to come to interests of justice slightly later, but let me take the point now. I do not want to drift into the presumption, but these issues are related to an extent. If it is not in the interests of justice to make the order, there would be good reason not to do so in new subsection (9). Therefore, the noble Lord’s question answers itself.

Amendments 2 and 9 add further factors to the list, including a condition that the court may use the new remedies only where it is satisfied that their use will be in the interests of justice. In addition to the point I have just made to the noble Lord, Lord Pannick—perhaps I am putting his question in reverse—I struggle to foresee a situation where the court, having considered new subsection (8) and the presumption, would think it appropriate to apply one of the new powers where the court none the less considered it against the interests of justice to do so. Indeed, I am making the same point: you do not get there, because if it is against the interests of justice, there must be “good reason” not to use one of the orders.

Furthermore, coming back to the amendments, if timeliness is relevant to the case, the court can consider that under the current drafting, in particular the factors set out in new paragraphs (c) and (f).

Those amendments sought to add some factors. Amendments 8 and 11 seek to remove a factor from the list and remove an important provision—the need for the court to consider

“any detriment to good administration that would result from exercising or failing to exercise the power”

and the need for the court to consider actions that a public body proposes or intends to take but has not yet taken. The point of clearly specifying that the court should have regard, not only to actions taken but to actions proposed to be taken, is that actions a public body proposes to take could sometimes be a relevant factor. For example, let us say that a government department recognises that regulations may be quashed but has already stated its intention to make new regulations and has announced the date by which they will be in force. This could help a court to reach a decision on whether a suspended quashing order is appropriate in principle and to determine how long the suspension period should be.

Amendment 10 seeks to modify the fourth criterion, paragraph (d), making it so that the defendant is responsible for identifying the interests of those who rely on legislation being quashed. I suggest this amendment is unnecessary. If a suspended quashing order, or a quashing order with limited retrospective effect or none, might be appropriate, it will always be in the interests of the defendant to set out why that is the case. The defendant would want to encourage the court to use that remedy rather than the ab initio quashing order. So, in effect, the onus is already on the defendant or respondent to demonstrate who will be affected if the impugned act is quashed immediately, ab initio; and that would obviously include identifying who has relied or is relying on the impugned act.

Amendment 12 seeks to modify the same factor in paragraph (d) by providing that the principle of good administration includes the need for administration to be lawful. I think I said in the previous group that that really is, if I may say so, motherhood and apple pie. Good administration is lawful administration. We all expect our Government and all decision-makers to abide by a set of lawful principles and duties that are conducive to effective administration. I am therefore not persuaded that legislating to say that good administration is lawful administration adds anything that is not already obvious or, indeed, inherent in the drafting.

Amendment 15 seeks to remove the requirement in subsection (10) for the court to take “particular” account of any action taken or proposed to be taken, or any undertaking given by a person with responsibility, in connection with the impugned act. This is intended to draw the court’s attention to any response the defendant may have already provided, or be in the process of providing, to the relevant defect. We see this subsection as a positive measure which could encourage a defendant to consider how to resolve matters proactively by offering suitable redress where it is appropriate, before the court need order it. It is also aimed at ensuring that the court takes particular care in considering any redress already provided so that defendants do not feel that they have to provide redress twice.

Finally, I come back to the point I was making about tax. I think the noble and learned Lord, Lord Falconer of Thoroton, asked me whether I was satisfied with the phrase “offer adequate redress”. I certainly am satisfied with that phrase, and I think the noble Lord, Lord Anderson of Ipswich, has an amendment in the next group that focuses on it. He certainly raised it at Second Reading, and I will be coming back to that. When I was referring to tax in the previous group, I was saying it would be very unlikely that a court would want to use a prospective remedy in that situation. I did not say “never” for two reasons. First, it is always up to the judge in any particular case. Secondly, one has to consider other effects even in tax cases. There could be cases where, for example, under tax legislation, somebody has not paid, but they have been given a refund, or they have a rebate or a tax credit. In those situations, it may be right, if it is positive to the taxpayer, so to speak, to use a prospective remedy even in tax cases. That is why I do not say “never” but in the case the noble and learned Lord was putting in the previous group, of when people have paid, in no circumstances does it seem likely that a prospective remedy would be appropriate.

I hope I have dealt with all the points raised. For the reasons I have set out, I invite the noble Lord to withdraw his amendment.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. As my noble and learned friend Lord Falconer said, this suite of amendments was really an attempt to get clarity. Some of them were probing amendments, and some we may return to at a later stage. As my noble and learned friend said, there are potential conflicts, and he gave the example of that between subsection (8)(c) and (d). Those two elements would need to be considered within the broader context of the whole of subsection (8).

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

My Lords, I entirely support the removal of the presumption. I will never try to achieve the brevity of the noble and learned Lord, Lord Judge, but he is absolutely right: this is a presumption in favour of the wrongdoer.

The only reason my name is not on Amendment 13 in the name of the noble Lord, Lord Anderson, is that I failed to secure a place among the first four supporters who were rushing to support the amendment. There is no getting away from the fact that, by new Section 29A(9), the Bill proposes making the exercise of the Clause 1 powers, prima facie at least, mandatory. If the “adequate redress” condition is met, and unless the court sees good reason not to do so, it must exercise both powers—not just one of the powers, according to the statute—both to suspend to suspend or delay the quashing order and to make it prospective only.

I agree with the noble and learned Lord, Lord Etherton, that this presumption colours the approach that is required to be taken by judges. I believe that understates the position. He was also right to say that it was dangerous and wrong in principle.

The Minister’s position on behalf of the Government is that the court is not bound to exercise these powers if it sees good reason not to do so. It follows from that that these are therefore wide discretionary powers and that any judges worth their salt—if I may paraphrase what he was saying at Second Reading—would find ways of not applying the presumption. If that is right then the noble Lord, Lord Anderson, is right that subsection (9) is entirely unnecessary. If the judge were to be entitled to exercise a wide discretion, there would be no reason to mandate the exercise of the powers in any particular way and we would be back to the position taken by the noble Lord, Lord Pannick, that the Government should trust the judges. I fear that the only reason the Government want to have the powers exercised on a mandatory basis is to ensure that there is a default position. That is why it has been correctly labelled a presumption. My noble friend Lord Beith’s analogy is absolutely right: if you have a toolbox, you should not be bound to use any particular tool, whether it is right or wrong for the job in hand.

My noble friend Lord Beith was also right on the question of “adequate redress” as an unsatisfactory and difficult-to-interpret test. Not only would it encourage unnecessary appeals, as the noble Lord, Lord Pannick, said, but it is also entirely unclear for whom the redress has to be adequate. The natural meaning of the words would be adequate for the applicant, but that is wrong in a public law case; it has to be adequate for every person materially affected. That is the point made in the amendment put forward by the noble Baroness, Lady Chakrabarti, although she modified her position on it slightly in addressing it today. Other parties affected need to be protected, not just because that is at the essence of public law but because those other parties are, by definition, not before the court and not personally represented when the judicial review application is made.

The Minister’s approach that judges will not regard themselves as bound by the presumption because they have this wide discretion, I suspect, underestimates the loyalty to the law felt by judges. Where there is a paradigm case that calls for the exercise of the power, under the compulsory wording of the Bill judges will strive to give effect to the will of Parliament and the principle that the law is there to be obeyed. That is embedded in their DNA. Therefore, the Government’s view that judges will bend over backwards to find ways around the presumption so as to avoid legalising unlawful acts of government is deeply cynical. It may shed significant light on the Government’s view of the rule of law, but it is completely inaccurate about the approach of the judges, who will apply the presumption if it becomes law lawfully and in so doing will considerably weaken the effect of judicial review.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by noting that my noble friend Lady Chakrabarti said that Amendment 14, to which I have my name, is a probing amendment and I think that she rightly said it is less preferable to Amendment 13 if we can clear up the element of new Section 29A(1)(b) about removing retrospective quashing. I agree with her point on that.

I want to address a different point. It was actually raised in the House of Commons by the government Minister at the time when he talked about unintended consequences. I will read out the briefing I have on this. In Committee, the Minister suggested that limiting the retrospective effect of remedies could mitigate the potential negative and unintended consequences that some public interest judicial reviews could have. For example, if a statutory instrument concerning social security is quashed, immediately it could remove all the social security protections provided for in that statutory instrument because they would no longer have any legal effect. But the argument is not convincing. The mere fact that some judicial reviews could potentially produce unintended consequences does nothing to argue in favour of a presumption. I was amused by the noble Lord, Lord Anderson, picking up that the noble Lord, Lord Wolfson, referred to a so-called quashing order. In the vast majority of cases, a court will not issue a quashing order in any event. In most cases, a court merely declares a statutory instrument to be unlawful and leaves it to the Government to amend the instrument in a way thought necessary by the Government. Indeed, even where human rights were violated between 2014 and 2020, the courts have quashed only four statutory instruments out of 14 successful challenges.

So we are not talking about very many cases and the points made by the noble Lord, Lord Anderson, and in support of his amendment, I think, are absolutely right. I shall listen with interest to the Minister’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin by responding to the noble Lord, Lord Pannick, to whom I am grateful for his characteristically kind words and his tender concern that I am replying to these matters not so much on my own and without a Leader as on my own and without any juniors. That is, I am without much support from those Peers who also take the Government Whip. I would not want to make this point publicly, but in the undoubted privacy of these discussions I can perhaps venture the suggestion that the undoubted attraction of a debate with the noble Lord, Lord Pannick, and others, about the finer points of judicial review might possibly have failed to outshine the annual dinner—which has now been awaited for a couple of years—of the Association of Conservative Peers. But that is mere speculation.

More substantively, let me turn to Amendments 13 and 14. These amendments seek to remove subsections (9) and (10), which have come to be known as the presumption, but I stand by calling it a so-called, or low-level, presumption, for reasons that I will set out. As I explained in answer to the question put to me in the previous group by the noble Lord, Lord Pannick, if the court regards there as being good reason not to apply either of the new remedies, then it does not have to; the presumption essentially falls away. The question then put to me, which I will come to, is: why have it in the first place? That is the either/or which a number of contributors have put to me this evening.

The aim, as I have said in previous groups, of Clause 1 is to aid good administration and provide greater flexibility to the court in giving remedies. The new remedies are a very useful addition to the courts’ toolbox —to use that metaphor again—and the presumption, we believe, allows the courts to consider their use and will make sure that a body of case law develops quickly around the appropriate use of new remedies.

The policy intention, therefore, behind the inclusion of the presumption is to encourage judges to use the new remedies where appropriate, and for that I really do make no apology. I do not see that as any fetter on judicial discretion or as the Government intruding into places where they should not be. The independent review, as we have heard, recommended that courts should be given a statutory power to make suspended quashing orders, as it thought that they would be beneficial if used appropriately. We believe that the suspended quashing order and the prospective order are useful additions, but they can only be beneficial to the jurisprudence if the court considers their use.

The presumption is therefore phrased in a way which encourages the court to consider their use, but we are not trying to fetter judicial discretion or to steer—I think that was the word used by the noble Lord, Lord Anderson of Ipswich—the courts to a particular decision. As now, it will remain very much up to the court to decide what remedy is appropriate in the individual circumstances of the particular case.

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Moved by

[Lord Ponsonby of Shulbrede]

16: Clause 2, page 3, line 19, at end insert—
“(1A) Notwithstanding subsection (1), subsections (2) and (3) do not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;(b) that party was not of full age or capacity;(c) the appeal before the First-tier Tribunal was not an in-country appeal;(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.

On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.

There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.

Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.

Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.

There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.

[Lord Faulks (Non-Afl)]

My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.

The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.

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I echo what I said on previous occasions. These are modest suggestions and the Labour Party should not take the view that any change to judicial review is per se bad. It is a change that is welcomed by the judges as a whole—of course, I cannot speak for all of them—and to say simply that this whole section of the Bill should go is not a responsible act of opposition.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.

[Lord Faulks (Non-Afl)]

He is in opposition.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I want to comment on Amendment 23 in the name of the noble and learned Lord, Lord Etherton. The amendment retains the Cart supervisory jurisdiction but bars

“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”,

and the decision of the High Court will be final. As the noble and learned Lord put it, this is a middle way. In a way, it is a shame that it was not degrouped from this group of amendments because, essentially, we have been having two debates in parallel. Also, it might have been more appropriate as a Report stage amendment.

By way of introduction to my comments on the amendment itself, one of the experiences of being a magistrate is that a lot of legal advisors leave magistrates’ courts to go and work in the administrative courts; it is a career progression for a number of them. Some, who I would count as friends, have said to me how utterly hopeless are many of the cases they have to deal with and prepare for the judges; so, interestingly, a number come back to the magistrates’ courts because they prefer the work there. Anyway, that is an aside.

The noble and learned Lord, Lord Etherton, questioned the figures presented by the Minister. I would be interested to hear the Minister’s response to that. A number of noble and learned Lords proposed further amendments. The noble Lords, Lord Trevethin and Oaksey and Lord Pannick, also proposed further amendments, which may come back on Report; we wait to hear. I noted that the noble Lord, Lord Marks, also supports the approach taken by the noble and learned Lord, Lord Etherton. I think that an encouraging statement has been made by all these noble Lords.

As I said earlier, we oppose Clause 2 standing part. I am grateful for the support of the noble Baroness, Lady Jones, and the noble Lord, Lord Evans, on that, but I intend to withdraw my amendment after the Minister has spoken.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin by addressing the clause as a whole before dealing with specific amendments, as a number of Members of the Committee have indicated that they believe the clause should be wholly removed from the Bill.

As the Committee is aware, Clause 2 overturns the Cart and Eba judgments, removing the route of challenge known in short hand as a Cart judicial review. Let us be clear exactly what that is: it is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. The claimant has already had a case before the First-tier Tribunal, which the claimant has lost, and the claimant has then been refused permission to appeal by both the First-tier and Upper Tribunal. A Cart judicial review allows an applicant to challenge in the High Court the Upper Tribunal’s refusal of permission to appeal—and that is not the end of the matter. If permission to apply for judicial review of the Upper Tribunal’s decision is refused by the High Court, that itself opens a route to the Court of Appeal, as we heard from the noble and learned Lord, Lord Etherton.

It should not surprise anyone that the Upper Tribunal, which is a senior and specialist tribunal, in some cases presided over by a High Court judge, appears to get over 96% of its determinations on permission to appeal right. In this context, “right” means that, sometimes, another High Court judge sitting on an application for a judicial review did not give permission. That should not come as a surprise because the Upper Tribunal is a senior court with a specialist jurisdiction, with senior judges sitting on it, so it is well suited to determining those questions of law.

I have heard it argued that we are removing a lifeline for claimants, but that argument can be extended to any system that has a limit—and there must be a limit. The question for Government and Parliament is where to draw the line. It is commonplace in our judicial system, so far as applications for permission to appeal are concerned, for that application to be considered by the original judge and the putative appellate judge, but no more. That is what the tribunal system does already.

Some members of the Committee may remember the decision in Board of Inland Revenue v Haddock, a decision of the Court of Appeal, comprising the Master of the Rolls, sitting with Lord Justice Ratchet and Mr Justice Apple, but reported only by one AP Herbert in his collection Uncommon Law. Subtitled

“Why is the House of Lords?”—

referring, I hasten to add, to this House in its former judicial capacity—the report posed the question why there should be three tiers of appeal: judge, Court of Appeal and then what he referred to, somewhat impertinently, as the

“wild wager on the final race”,

as he described the former Judicial Committee of this House. This metaphor meant that the Court of Appeal was relegated to

“a minor handicap taking place at 3.30”.

However, we have moved on since then. There is often now one tier of substantive appeal. If you want to appeal from a master to a judge, and then from the judge to the Court of Appeal, there are very special rules for second substantive appeals, and even showing that the judge was probably wrong is not enough to get you a second appeal. This is not even a substantive appeal; it is a question of permission to appeal where both the First-tier Tribunal and the Upper Tribunal have refused permission.

As I have said, the Upper Tribunal does not err often, with only 3.4% of claimants who were refused permission to appeal being granted an appeal and then having that appeal found in their favour. That can usefully be compared to a general 30% to 50% success rate for judicial review cases. Due to this, and the sheer number of Cart JRs per year—around 750—the IRAL recommendation was for Parliament to legislate to remove the Cart judicial review process.

I obviously listened very carefully to what the noble and learned Lord, Lord Etherton, said about the time and motion study and the assumptions set out therein. I know that he and my officials have had a number of useful exchanges on this. We have striven to count as accurately as possible the days taken at each point in the process, and we set that out in our impact assessment. I think that the noble and learned Lord omitted the time taken by the Upper Tribunal for reconsideration, which is not insignificant. Whatever the number of cases that reach the Court of Appeal, it must be more than zero. Therefore, I argue that there is a risk that we are actually underestimating the judicial time spent on Cart reviews. But, for present purposes, I can say that I am very happy to continue discussion on these matters ahead of Report. I will also write to the noble Lord, Lord Marks, about the data, if there is any—I do not know whether there is—on the settlements and the other points that he mentioned.

The second contention put against me is that the means by which we propose to implement the recommendation is a dangerous one. There are two points here. First, are ouster clauses appropriate in principle? I know that I will not persuade the noble Lord, Lord Marks, on this but, to put it briefly, parliamentary sovereignty means that an ouster clause can be appropriate in principle, I suggest. Legislation can change any aspect of the law and can also include an ouster clause. Although I respect and understand the argument that they are wrong as a matter of principle, I and the Government do not agree with this argument, and we consider that they are appropriate in particular circumstances.

The question now is: in this case, is the ouster clause the proper measure? We say it is: this is the best way to make Parliament’s intention clear vis-à-vis the relative and respective competences of the Upper Tribunal and the High Court. I absolutely accept that the clause’s drafting has been influenced by the arms race, one might say, between Parliament and the courts on ouster clauses in a series of cases. Parliament says X; the court says, “Did you really mean X? Maybe you meant Y.” Parliament says, “No. We are now saying Y.” “Well, what about Z?” You can see that development of the cases from Anisminic through Privacy International and thereafter. That is why the clause must in the form it is: otherwise, the point from Privacy International will be put: “Why does it say ‘purported’?” I think that was the Privacy International point. That is why the clause is drafted in the way it is.

Amendment 23 in the name of the noble and learned Lord, Lord Etherton, creates a procedural bar, providing that the decision of the High Court or any other supervisory court in reviewing an Upper Tribunal permission to appeal decision is final, preventing any escalation of that point to the Court of Appeal. Although I accept that that approach would create some efficiencies compared with the status quo, they would be significantly fewer than the approach we are taking. It also does not address the conceptual issue, with the High Court overseeing permission to appeal decisions of the Upper Tribunal, which is a senior court of record with specialist subject knowledge.

I am also concerned that some of the nuance in the original ouster clause, which still allows review in certain circumstances, has been lost in that revised version. The procedural bar proposed by the noble and learned Lord would seem to be absolute, not only on the refusal of permission point but, as was identified in the debate, in the substantive disposal were permission granted. As the debate went on, it seemed to me that the lid would not be as tight-fitting as he intended. Indeed, it sounded to me that as more additions and exceptions were built into the amendment, we would be back at either square one or, perhaps at best, at square two. Therefore, although I appreciate that the noble and learned Lord seeks a compromise solution, his amendment, especially with the additions accreted thereto, would not meet the Government’s policy intent.

Amendments 16 and 20 in the name of the noble Lord, Lord Ponsonby, and Amendment 21 from the noble Lord, Lord Marks, add a variety of exemptions to the ouster clause in particular cases but, in short, the Upper Tribunal is well placed to know the circumstances. It deals with matters of immigration law on a regular basis, and I therefore see no justification for treating those circumstances as exceptions to the ouster clause.

Amendments 17 and 18 apply to the natural justice exemption. This provision was amended by the Government on Report in the other place to read in the words now in the Bill. That was not, as my colleague James Cartlidge explained, a change of policy. Our intention is for substantial procedural impropriety to remain reviewable but for errors of fact or law within the Upper Tribunal’s remit to be ousted. The new wording is intended to be clearer. The amendments would undo the clarification on that point. As to whether fundamental breach is particularly different from material breach, that is perhaps something of a moot point. The intention is to set a high bar which will not be susceptible to erosion over time or cause an unnecessary number of applications, which would undermine the entire purpose of the ouster.

In that context, Amendment 19 in the name of the noble Lord, Lord Pannick, which would allow the High Court or the other supervisory jurisdictions to carry out a JR of an Upper Tribunal permission to appeal decision where there is a “fundamental error of law”, risks taking us back, I am afraid, almost to where we started. That amendment attempts the same thing the Supreme Court attempted in Cart itself—to create a route for judicial review on errors of law but with a sufficiently high bar not to create a flood of cases. That attempt obviously failed, and I fear the noble Lord’s amendment will take us back and, essentially, repeat the same mistake.

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I therefore consider that Clause 2 is both appropriate and proportionate. It supports the efficiency of our justice system and forms an important part of the Bill. I understand that the noble Lord, Lord Ponsonby, will be withdrawing his amendment, and I invite other noble Lords not to press theirs.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is clear we will return to a number of issues on Report. But for this evening, I beg leave to withdraw Amendment 16.

Amendment 16 withdrawn.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

I am struggling to remember as far back as Second Reading of this Bill, but I did say at the time that Clause 3 was designed to save money in the courts system, and that the main savings would arise from people who pleaded guilty but who should have pleaded not guilty. The risk is so obvious that I am surprised that there are no safeguards or legal protections included in Clause 3. People need to have legal advice; they need to know whether they have a valid legal defence prior to deciding whether to plead guilty or not guilty. Whether someone has a legal defence is not obvious or straightforward; if it were, we would not have lawyers and judges—including lawyers of the huge talent that we have here in your Lordships’ House. The mishandling of all those Covid prosecutions shows how badly the system can get it wrong when things are not clear: there were thousands of wrongly issued fines and wrongful convictions by magistrates.

Defendants need independent, quality legal advice prior to deciding their plea, and the lack of any such safeguards in Clause 3 makes me wonder how it has got so far without this problem being exposed by the Minister, because the risks are even greater for vulnerable groups, such as those with learning disabilities. The pressure of avoiding going to court might make pleading guilty online feel like the safer option, and the cost of getting a lawyer might make the online guilty plea seem like the best option. There is nothing in these proposals to ensure that vulnerable people are supported in making informed decisions. So the potential for disaster is huge, and there should at the very least be signposting by the Government to independent legal advice, screening for vulnerabilities, and checking whether people are eligible for legal aid. I ask the Minister whether the Government are going to bring amendments along these lines on Report. It is potentially a sensible idea, but I would like to see it work well for defendants, and for that there will have to be some changes.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the final sentence of the noble Baroness, Lady Jones. We all want to see this system work well, and we all want to see adequate safeguards. It seems to me that the safeguards may be built into the regulations, but of course we can build in further regulations and safeguards through the process we are going through now. We are not hostile to these procedures as such; we are just concerned that proper safeguards are built in, either through primary legislation or the regulations.

The noble Lord, Lord Marks, set out fully the broad gamut of issues relating to these types of online convictions, where people plead guilty and receive a computer-generated sentence based on certain summary, non-imprisonable and relatively minor offences. All noble Lords who have spoken raised the point about the ramifications of people making guilty pleas because it seems easier to just get it out of the way, and that the possible consequences of having that criminal conviction, even though it is a non-recordable conviction, are not readily known.

I spoke about this point when I had a meeting with the Minister last week. The wording in the Bill is “recordable offences” and I made the point that there are plenty of offences which are recorded, but they are not recordable in the sense of going on the Police National Computer. For example, when I sit in court as a magistrate and deal with people who have non-recordable offences such as evading train fares, the information is available to me that they have previous convictions for avoiding train fares. I am aware of that information, even though it is not a recordable offence, and that will obviously have an impact on the sentence I give to the person who has not paid their train fare for a second or third time. So there is a distinction between offences which are recorded and offences which are recordable.

I will briefly run through the amendments in my name. As the noble Lord, Lord Marks, said, they are trying to mitigate the possible problems with this approach, to which all noble Lords have spoken. Amendment 26 would require all accused persons considered for automatic online convictions to be subject to a health assessment and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online. Under Amendment 27, the automatic online conviction option would be available only if the prosecutor is satisfied that the accused has engaged a legal representative. Amendment 28 would exclude any recordable offences from the automatic online conviction option. Amendment 29 would raise the age of eligibility for written procedures for entering guilty pleas from 16 to 18 years old.

As the noble Lord, Lord Marks, said, those four amendments in my name attempt at this point to probe the Government’s response to the potential pitfalls of this approach, to put in adequate safeguards for vulnerable people and children and to make sure that people do not plead guilty out of a sense of convenience. I was particularly taken by the argument used by the noble Lord about ensuring that, when people plead guilty, they know the full ramifications of the possible costs of their guilty plea. As he said, there is the cost of the fine itself, the cost of the prosecution and the cost of the victim surcharge, and all those numbers add up. When one sits as a magistrate, one has discretion over the fine and the costs but no discretion over the victim surcharge, so it is not a straightforward calculation. Depending on the means of the person one is dealing with, one would make a suitable adjustment.

After one has put the fine in place, one puts in place a collection order. This is where you give a specific and direct warning to the person you have just fined that, if they do not pay the money, there is a power for debt collectors or bailiffs to come to their house to collect goods to the same value. I go on and warn them that that makes things more expensive because the bailiffs also charge their costs. So there is quite a bit of procedure that one can adjust when one is sentencing, according to the nature and means of the person in front of you. The noble Lord, Lord Marks, asked a good question: how will this online procedure have the flexibility that the in-court procedure has to make sure that a fair disposal is reached?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I will first deal with the general argument for Clause 3, not least because the noble Baroness, Lady Chakrabarti, gave notice that she would oppose the Question that Clause 3 stand part of the Bill.

As we have heard, Clause 3 creates an alternative new automatic online conviction and standard statutory penalty procedure for some single justice procedure cases. I should say at the outset that it comes with a number of safeguards. I assure the noble Baroness, Lady Jones of Moulsecoomb, that, as the noble Lord, Lord Ponsonby, fairly said, we all want to see the system work well. This is about putting in place a system that is appropriate and fair.

The procedure would provide defendants aged over 18 and companies that wish to plead guilty to specified offences the additional option of accepting a conviction and pre-agreed standard penalty online without the involvement of the court. Importantly, prosecutors will offer this to defendants only in cases that they consider can be dealt with appropriately through this procedure. It is unlikely even to be offered in cases where, for example, there are aggravating factors or the defendant is a habitual offender.

The procedure is entirely optional on the part of the defendant. Defendants can choose to have their case heard in court at any time before they accept a conviction. Defendants who opt in to using this procedure will be guided through the process and provided with all the information they need to make an informed decision, including—the noble Lord, Lord Marks, made this point—the consequences of accepting a conviction and the full details of the prospective fine. I will say a little more about that in a moment.

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Moved by

[Lord Ponsonby of Shulbrede]

30: After Clause 5, insert the following new Clause—
“Review of the single justice procedure
(1) Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.(2) A review under subsection (1) must consider—(a) the transparency of the single justice procedure in line with the principle of open justice,(b) the suitability of the use of the single justice procedure for Covid-19 offences,(c) prosecution errors for Covid-19 offences under the single justice procedure and what redress victims of errors have.(3) The Secretary of State must lay a copy of the report before Parliament.”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in introducing this group, I thought I would tell the Committee about my experience of sitting as a single justice magistrate dealing with Covid emergency legislation about a year ago. I dealt with fixed penalty notices handed out to people who broke the emergency legislation. The fine was £60, but if it was paid within 14 days it was £30. If that was not responded to the defendants received a letter saying that they should either turn up to court or respond to the letter or the matter would be dealt with by the single justice procedure.

I sat at my dining room table as a magistrate and I dealt with 30 trials in the morning. I convicted 29 of the 30. The prosecution case was the police officer’s note, which I had up on my screen so I could read it. There was no defence case because the defendant had not turned up. I then went on to sentence, which was a £100 fine, £100 in prosecution costs and a £34 victim surcharge, so £234 to pay and a collection order. That is what I did 29 times out of 30 last summer. It was a special time. It was a difficult procedure to go through, but we need to be very conscious of the difficulties and potential pitfalls with these types of procedures. Having said that, and given that example, I believe there are occasions and types of cases where it is appropriate.

Both my amendments make the same point in trying to build in suitable reviews of the procedure to ensure it acts fairly. Amendment 30 states:

“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”


My noble friend will speak to her Amendment 37. Amendment 54 says:

“Before section 43 may be commenced, the Lord Chancellor must—


(a) undertake a consultation with relevant stakeholders regarding the proposed abolition of local justice areas under that section, considering in particular the impact on the principle of local justice,


(b) lay before Parliament the Report and the findings of such consultation, and


(c) provide a response explaining whether and how such issues which have been identified would be mitigated.”


To say a few words on Amendment 54, magistrates arrange themselves in local justice areas. There are nine local justice areas in London. It is a historical way of organising magistrates, if I can put it that way. I understand that there are arguments on both sides. I also understand, from talking to the Minister and his officials last week, that there will be extensive consultation and further legislation on this matter if it is taken forward. Nevertheless, I beg to move.

[Baroness Chakrabarti (Lab)]

My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.

Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.

Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.

I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.

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[Lord Wolfson of Tredegar (Con)]

First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.

I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.

Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.

We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.

On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.

Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.

In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.

I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. I have to admit that Amendment 54 provoked more comment than I was anticipating. I particularly thank my noble and learned friend Lord Falconer for his observations about the importance of local justice areas, and my noble friend Lady Whitaker for her experience of local justice areas. The same point was made by the noble and learned Lord, Lord Mackay.

I understand that there needs to be a balance between getting rid of artificial boundaries and recognising the importance of locality. While the point made by the noble Lord, Lord Beith, about rural local justice areas is absolutely right, where people have to travel a great distance, in a big conurbation such as London I personally feel very much connected to the area where I sit as a magistrate.

I want to add one extra point to this debate, which I understand will be going on, about the importance of the pastoral role of the Bench chairman. I sit as a chairman for the Greater London Family Panel, and quite literally every day I deal with pastoral matters for my magistrate colleagues. It is a very important role and one that my colleagues appreciate. I think it is important that that role should continue in some way, because it is a way of maintaining the morale of magistrates within a particular area. I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

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Moved by

[Lord Ponsonby of Shulbrede]

31: Clause 6, page 11, line 13, at end insert—
“and has received the advice of a legal representative prior to submitting a plea.”

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, in this group of amendments we are dealing with offences triable either way and determining the mode of trial. I will go through all the amendments one by one and then make some rounding-up comments at the end.

In Amendment 31, the provisions in Clause 6 would apply only to persons charged with an offence who had received the advice of a legal representative prior to submitting a plea. In Amendment 32, the provisions in Clause 6 would apply only if the court had been provided with a physical and mental health of the accused, confirming that the written procedure would not impede the ability of the accused to understand or effectively participate in proceedings.

Amendment 33 would ensure that an accused person was informed about not only the consequences of giving or failing to give a written indication of a plea but the potential legal and practical consequences of pleading guilty. Amendment 34 would remove cases involving children and young people from the provisions of Clause 9. In Amendment 35, Clauses 6 to 9 would expire two years from when the Bill was passed, unless Parliament passed a resolution to retain those clauses.

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Finally and briefly, I turn to the proposal that Clauses 8 and 14 should be removed from the Bill. Clause 8 would provide a defendant under 18 years of age with the option of indicating a plea and determining mode of trial in writing online. Clause 14 would require the involvement of a parent or guardian. I have already set out the various safeguards for children, and, where a child chooses to provide an indication of plea online, courts will have to make sure at the first hearing that the child has understood the decision and confirms a written indication of plea before proceeding any further with that case. That is an important safeguard at the very first court hearing. I hope that I have set out why the Government believe the amendments are unnecessary, and I invite noble Lords not to press them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I find myself in a somewhat invidious situation regarding Amendment 36. I thank the Minister for defending the position of the Government and I speak against my noble friends who questioned the increase in magistrates’ sentencing powers. Having said that, I accept the more general point—or more principled point, if I can put it like that—of the noble Lords, Lord Deben and Lord Marks, and my noble and learned friend Lord Falconer, that the changes should be done by primary legislation rather than in the way in which the Government are proposing to do it here.

I shall just make a couple of points regarding magistrates’ sentencing powers. Magistrates in youth courts sentence up to two years. I have done that once in 12 years as a youth magistrate. Magistrates in adult courts, for more than one either-way offence, can currently sentence up to 12 months. The difference is that it is on multiple offences that you get to the 12-month maximum, rather than on the single offence, which is the proposed amendment. I do that very infrequently: I could probably count on the fingers of one hand in 14 years as a magistrate when I have sentenced 12 months on multiple charges. It really does not happen that often. Nevertheless, the Minister made a fair point when he said that the Government will monitor the impact of this proposed change. I am sure that people will keep a very close eye on whether these sentencing powers are being used in any inappropriate way, but I really cannot see it happening. Nevertheless, I am happy for the Government to monitor the change. I beg leave to withdraw Amendment 31.

Amendment 31 withdrawn.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.

There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.

Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.

I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.

So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.

This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.

I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.

The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power

“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]

really captures what the clause is intended to achieve.

Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.

The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.

Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.

The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.

First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,

“unless it sees good reason not to do so”;

the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.

The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.

The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.

I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.

There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.

The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.

My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.

The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.

In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.

I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.

Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.

While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.

Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.

With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.

I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.

Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.

The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.

Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.

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Moved by

[Lord Ponsonby of Shulbrede]

7: Clause 3, page 5, line 37, at end insert “and
(b) it is not a recordable offence, as specified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).”Member’s explanatory statement
This amendment seeks to exclude any offences which are recordable from the automatic online conviction option.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this whole group of amendments is about criminal procedure divisions. It is not my intention to press any of these amendments to a vote, but to look at the broad sweep—if I can put it like that—of the way the various elements of the emergency legislation for Covid, for example, and other things are being put into criminal procedures on a more permanent basis. I remind the House that I sit as a magistrate and I have personally sat in the Covid emergency-related courts over the last two years.

I will go through these amendments relatively quickly, even though they are important amendments. Amendment 7 seeks to exclude any offences that are recordable from the automatic online conviction option. The existence of a criminal record can, for example, seriously undermine someone’s chances of finding employment, especially in certain sectors and professions, including nursing, social care, childminding and teaching; of accessing educational and training opportunities; of obtaining certain types of insurance; or of having the ability to travel to certain countries. For non-UK citizens, criminal records can affect their right to remain in the country. If the automatic online procedure is introduced, it is crucial that it applies only to those offences for which convictions are unlikely to have an impact on individuals’ rights and opportunities. It is in that spirit that I tabled Amendment 7.

Amendments 8 and 13 are also probing amendments, of which I gave notice to the Minister yesterday, to question to what extent courts will be required to share information with the media and public about cases that have an online or written element. Concerns have been raised that the Bill could damage the principle of open justice and access to the courts’ information. As the Minister knows, this was raised with me only yesterday by the Guardian Media Group; I received a briefing on this matter, which I forwarded to him. I will not go through all the points that are raised in the briefing, but there is a concern that, if the Bill becomes law, it will mean an end to many first appearances in the criminal courts, with the consequential significant reduction in information provided to the media. Various examples are given in the briefing. Although the Minister pointed out in Committee that HMCTS has guidance on this matter, the reality is that there is nothing in the Bill that requires the steps in the guidance to be taken. The purpose of these amendments is to encourage the Minister to give a fuller explanation of the way the media will get access to the courts.

I move on to Amendment 9, under which the accused must have obtained the age of 18 when charged to enter a guilty plea in writing under Clause 4. Children are inherently vulnerable in nature and possess a well-evidenced propensity to plead guilty, notwithstanding the evidence or potential defences—that is in the briefing that I have from Justice. I have to say, talking as a youth magistrate, I think that children also plead not guilty when they are not properly advised. Lawyers need to spend time with youths to get them to explore the impact of whatever their plea is going to be. I have seen ill-considered pleas, if I can put it like that, so I think it is very important that they are properly advised before they make a plea in court. As the chair of the Justice Committee, Sir Robert Neill, pointed out at Second Reading in the House of Commons:

“What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future.”—[Official Report, Commons, 26/10/2021; col. 206.]


Amendment 10 proposes:

“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”


As I said, this is a probing amendment to give the Minister an opportunity to commence a review of the procedure to see whether he is satisfied that it is bedding in properly and functioning in an appropriate way. Amendment 11 would guarantee that defendants have access to legal advice before submitting a plea under the provisions of Clause 6. Amendment 12 would ensure that an accused person is informed not only about the consequences of giving or failing to give a written indication of plea but the potential legal and practical consequences of pleading guilty.

Various pressure groups, if I can call them that, have expressed concern about the written procedure of indicating a plea of guilt without proper advice. The Law Society contends that unrepresented defendants will not have the necessary legal knowledge to know whether they are in fact and in law guilty of an offence. Without legal advice, a defendant will likely not understand the full implications of their decision to indicate a plea and the possible consequences of entering a guilty plea. A seemingly innocuous decision made in writing or online could have significant consequences for the defendant.

I know that the Minister’s response to that point will be to say, “They do it in regular courts, so what is the difference here?” But the answer to that point is the ease of doing something by accident. When you physically go to a court, even if you are unrepresented, the environment is such that you know that you are involved in a serious matter, and there is also an opportunity for interaction with judges or magistrates. Certainly, in my experience, they will explore the plea, whether guilty or not guilty, to see whether people understand what they are saying when they respond to the question. The concern is that when this procedure is online there is a temptation to press that button without being aware of the consequences, and that concern is addressed by Amendments 11 and 12.

Amendment 14 would delete Clause 8, thus removing the written procedure for children for indicating plea and determining the mode of trial. Clause 8 would allow children to use the new allocation procedure. That is despite the fact that existing law rightly affords children additional productions and safeguards to reflect their inherently vulnerable nature and well-evidenced propensity to plead guilty—although I question that last point, even though I am reading out that briefing. The point is the same one: people need to be properly advised and understand the gravity of the situation. When dealing with allocation, it is an opportunity for everyone, and children in particular, to fully understand the situation that they are in.

Amendment 15 would delete Clause 9(5), which will introduce a power for the court to proceed with allocation proceedings in the absence of a child defendant. This is a similar point to the one I have just made. We are not convinced that the supposed merits of having a child absent when this decision is made outweigh the risks of disadvantage and lack of safeguards. This is repeating the point I made on the earlier amendments that, certainly in my experience, when a court is deciding on allocation, it sometimes goes into some level of detail on the case itself and it is absolutely right that the young person—and the parents, I might say—should be present when that is being heard. One thing I absolutely always do when I am in youth court is make sure that the parents understand what is being said against the youths, because the youths do not necessarily tell the parents why they are there in the first place. So I think it is an important piece of procedure.

Amendment 17

“would ensure that the new increased magistrates’ sentencing powers would be subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.”

The noble Lord, Lord Wolfson, argued that the Government already publish data, but I will read out the data that is published. The Government currently collect the following data: first, quarterly data on custodial sentences and average sentence length in criminal courts; secondly, cross criminal justice system scorecards; and, thirdly, criminal justice outcomes data. So, those data which are currently collected will not measure the impact of the increased sentencing powers for magistrates; there needs to be a more specific approach to properly capture those increased sentencing powers, and that is the purpose of this amendment.

Amendment 18 would delete Clause 14, alongside the deletion of Clause 8. I have spoken to this already; it is consequential on the earlier amendment.

Finally, Amendment 37 would provide that, before local justice areas are abolished, the Lord Chancellor must: undertake a consultation with relevant stakeholders; lay before Parliament the report and findings of such consultation; and provide a response explaining whether and how such issues which have been identified would be mitigated. I will say a little more about this amendment. I had thought this was a relatively innocuous amendment. Noble Lords may be aware that magistrates are arranged in local justice areas. My local justice area, for example, is central London, where there are about 300 magistrates. We have a bench chairman, elected by us, and she has a pastoral role and an administrative role in managing all the magistrates within that local justice area.

I understand that this is going to be reviewed, but the argument for doing away with this structure and moving to structure that is more similar to other tribunals is that it would make the process more flexible. But the point I made in Committee, which I repeat now, is that my experience as a current panel chairman of the Greater London family panel—I have about 300 family magistrates who I am currently responsible for—is that every single day I am dealing with pastoral matters. I think it is an important role and I very much hope it will be retained in whatever future structure is landed on, but I understand there will be consultation. I beg to move.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.

What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.

I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.

Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.

The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.

In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.

Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.

Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.

Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.

[Lord Ponsonby of Shulbrede (Lab)]

Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?

[Lord Wolfson of Tredegar (Con)]

I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.

Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.

Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.

Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.

The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.

Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.

Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.

I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.

I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.

There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.

I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I beg leave to withdraw Amendment 7.

Amendment 7 withdrawn.

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[Lord Wolfson of Tredegar (Con)]

Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.

The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.

Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.

Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.

Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.

[The Lord Bishop of St Albans]

My Lords, I rise to speak briefly to Amendment 28 standing in my name. I would be grateful if the House would indulge me just for a few minutes. As I explained last week when I was presenting my Private Member’s Bill, Public Health England pointed out that, in just one year, there were 409 suicides related to problem gambling. Your Lordships will be aware that the largest lobby group here in the House is Peers for Gambling Reform. Whenever we have tried to deal with this, one thing we keep hearing back is that we simply do not have the statistics or the data on the various causes of suicide. For some while, I have been trying in every way I can to get at least some data to help us with this so that we can devise strategies to reduce the terrible burden on families who have lost a young person.

The noble Lord, Lord Ponsonby, is right that most of those who have taken their lives are young men, but it is now becoming clear that this is quite a significant problem also among younger women. It is partly because the ubiquitous gambling adverts are now spreading into women’s magazines and so on—it is just all over the place.

I shall be brief, because the Minister addressed some of the concerns in responding to my Private Member’s Bill, the Coroners (Determination of Suicide) Bill, last Friday, but there are some important differences in this amendment, which is my attempt to respond to points that the Minister made. Unlike my Bill, the amendment would permit, but not require, coroners to record factors relevant in a death by suicide. Other differences between the amendment and the original Bill include provisions to ensure that the jury would no longer have any say in the consideration and recording of relevant factors and that the consideration and recording of factors by the coroner would now occur outside the inquest process and not disrupt the traditional remit of an inquest to determine how, what, when and where in relation to an unexplained death.

Finally, the amendment would require the Secretary of State to issue guidance on which factors relevant in a death by suicide could be considered and the form in which they would be recorded by a coroner. Strict data protection provisions are included to prevent the identity of the deceased being disclosed or deduced in any way.

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Moved by

[Lord Ponsonby of Shulbrede]

25: After Clause 44, insert the following new Clause—
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased, and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.

This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.

The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.

[Lord Thomas of Gresford (LD)]

My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.

I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.

Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.

We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.

I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, 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.

Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.

For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.

He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.

The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.

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

My Lords, we very much welcome this amendment and thank the Minister very much for responding so positively to the suggestion. There was never any justification for a distinction between tribunals and courts in this regard. Also, the House has every reason to be very grateful to the noble and learned Lord, Lord Etherton, for pushing the point and bringing it to such a successful conclusion.

[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?

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

3rd reading
Wednesday 6th April 2022 Lords Chamber

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

My Lords, I will speak very briefly on this issue. I want to say two things. The first is to express our gratitude to the Minister and the Bill team. The Minister has given all of us a great deal of time, both before Committee and on Report, and that has been used very successfully. I would also like to express my thanks to Opposition and Cross-Bench Peers, particularly those with legal and judicial experience, who have done a great deal of work in improving this Bill. The Bill team also has given us all a great deal of help.

The second point I want to make is that we have made a number of changes to this Bill after really serious consideration in Committee, on Report and following Second Reading. It would be nice to think that, when this Bill now goes back to the Commons, those changes will get some serious consideration, rather than simply being returned to this House after cursory consideration. They are important. We have deployed a great deal of expertise, knowledge and effort in making those changes, and they deserve a proper look from the other place. That said, I give my grateful thanks to everyone.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I echo the thanks of the noble Lord, Lord Marks. I also thank the Minister and his team for their support and the numerous meetings we have had as the Bill has progressed. I would also like to thank the outside organisations that I have found particularly helpful; I mention the Public Law Project, Justice, Inquest, Fair Trials, Transform Justice, Liberty and Amnesty International—I found their support extremely helpful. I would also like to personally thank Catherine Johnson, who has been of great assistance to me as this Bill has passed through this House.

I reinforce the point made by the noble Lord, Lord Marks, about the importance of the amendments we have passed. We have had a different approach from that taken in some other Bills. We have had only a small handful of amendments that have passed for the House of Commons to consider. They have been Cross Bench-led by extremely senior judges and they deserve serious consideration by the other House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that the House has a lot of business before it today, but I will take just a few moments to say a few words to mark the end of the passage of the Bill through this House. Over the last few months, we have had some spirited discussions on our Courts & Tribunals Service and the relationship between the judiciary and Parliament. I am grateful to all noble Lords for their scrutiny of this Bill.

Of course, I was disappointed that the House voted, albeit narrowly, to remove the power for prospective-only quashing orders on Report. I will reflect further on the House’s decision on Report to remove the presumption in favour of using the new remedies from Clause 1. We had detailed debates over the merits or otherwise of the presumption. I can assure the House that I have heard and listened carefully to the arguments made to me both inside and outside the Chamber.

Judicial Review and Courts Bill

Lord Ponsonby of Shulbrede Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Garnier (Con)]

My Lords, I join the noble and learned Lord, Lord Brown, in all that he has said, and I say with greater confidence, albeit with some reticence, if that is not a contradiction, that I disagree with my friend, the noble Lord, Lord Marks, with whom I am a fellow member of chambers. I think it is fair to say that the Back Benches of the Conservative Party in this House are now more greatly adorned by the promotion, I would say, of the noble Lord, Lord Wolfson, to these Benches, and I look forward to his contributions from his Back-Bench seat. The noble Lord, Lord Pannick, correctly described my noble friend, but he and I need to be very careful because we now have yet another competitor for a car park space in Brick Court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to thank the Minister for his careful introduction to the Motions before us today. I would also like to thank all those who worked to improve this Bill during its progress through both Houses, and I single out my honourable friend the Member for Hammersmith, Andy Slaughter, and Alex Cunningham, the Member for Stockton North. I would also like to thank noble, and noble and learned, Lords from the Cross Benches who have taken an active interest, particularly in the judicial review parts of this Bill, which has led to the substantial improvements which we have just heard about.

There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today.

I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this

“extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.]

I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord.

In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion.

I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place.

The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name.

Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on.

I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way.

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Moved by

[Lord Ponsonby of Shulbrede]

At end insert “and do propose Amendment 11B in lieu—

11B: Insert the following new Clause—
“Independent review of publicly funded legal representation for bereaved people at inquests
(1) The Lord Chancellor must commission an independent review of the need for provision of publicly funded legal representation for bereaved people at inquests not more than six months after the passing of this Act.
(2) The review must be chaired by a person appointed by the Lord Chancellor.
(3) The review must include a consultation with interested stakeholders, whose submissions must be published.
(4) The Lord Chancellor must publish the outcome of the review and lay it before Parliament no later than one year after the passing of this Act.””

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I beg to move Motion C1.