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.