Judicial Review and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

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[Lord Etherton (CB)]

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

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

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

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

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

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

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

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

[Lord Thomas of Cwmgiedd (CB)]

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

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

[Lord Trevethin and Oaksey (CB)]

May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?

Judicial Review and Courts Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.

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

My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.

I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.

The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.

That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.

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As to data, we already publish relevant data on GOV.UK. Each quarter, we publish data on custodial sentences and average sentence length in criminal courts. Annually, we publish separate data for magistrates’ courts and Crown Courts. We will continue to do that; we will take this data into account in our monitoring. We think it would be disproportionately burdensome—

[Lord Thomas of Cwmgiedd (CB)]

My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.

[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.

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[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.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.

[Baroness Jones of Moulsecoomb (GP)]

I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.

I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.