Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Bill be now read a second time.

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

My Lords, the Judicial Review and Courts Bill comprises important measures dealing with both areas. I shall start with judicial review, but before getting to the detail of what is in the Bill, and especially for those few non-lawyers who have ventured into this legal bearpit, let me say a few words about what judicial review is and what it is not.

Judicial review is a means of holding those in public office, or those using public powers, to account. It is there to ensure that those who exercise public office or public powers had legal power to do what they did, and that they exercised such power in the manner and for the purpose the power was conferred.

The clue is in the title: judicial review. It is a judicial function that is exercised by judges; but it is a review mechanism that assesses the lawfulness of the decision-making process, not the merits of any decision that a public authority has taken. It is not for the courts to review—or, to put it more tendentiously, second-guess—the economic or social merits of government policy.

That is for good reason. Ministers are politically answerable to Parliament and, ultimately, to the people. Judges are politically answerable to no one, and that is how it should be. If people do not like a Government, they can vote them out. But they cannot vote the judges out—or indeed vote them in—and, again, that is how it should be. If the decision-maker had legal power to act as it did and acted in accordance with the law and in a procedurally proper manner, the fact that the judge might think the decision was wrong is—or should be—neither here nor there.

I have heard it said in some of the commentary on the Bill that it is somehow inappropriate for the Government and Parliament to intervene in the field of judicial review. That is a contention I cannot accept, for two reasons. First, as a matter of basic principle there cannot be any field of law in which it is wrong for Parliament to tread. Parliamentary sovereignty, like judicial review, means what it says on the tin. Secondly, and relatedly, Parliament is the proper forum in which the social and economic aspects of government policy are to be scrutinised.

So Parliament has a role—indeed, I would say, a duty—to intervene when the law takes a wrong turn or when it is not operating as effectively as it might. It was for this reason that the Government committed in their 2019 manifesto to look at the way in which judicial review is operating. It is the reason why we established the Independent Review of Administrative Law, with an eminent panel chaired by the noble Lord, Lord Faulks, in 2020, and why the measures in this Bill are before the House today. The excellent work of the noble Lord and his eminent panel is the bedrock of Part 1 and the sensible and practical reforms that the House will consider.

Let me now turn to the detail of some of the measures. Clause 1 addresses concerns about the lack of remedial flexibility currently available to the courts, which was identified as an issue by the independent review. At present, when a decision is quashed—that is, struck down—the effect of that quashing is typically immediate and retrospective. It operates ab initio and deprives the decision of ever having had legal effect. This means that a quashing order can be a blunt instrument which is too often applied to nuanced problems.

Clause 1 provides courts with greater flexibility, allowing them to deal more practically with the ramifications of quashing while delivering justice to claimants. That is achieved by allowing courts to suspend the effect of a quashing order or to limit or remove its retrospective effect. Suspending a quashing order means that courts can, when appropriate, allow a decision-maker to make a new decision before the unlawful act is quashed, or put in place transitional arrangements. Making a quashing order prospective-only enables the court to consider the interests of those who have relied on a decision which is being struck down and prevent a regulatory vacuum arising when secondary legislation is quashed. Individuals or families may in good faith have taken actions that they thought were lawful, and, without the ability to make a quashing order prospective-only, would have acted on the basis of a regulation which would be ruled never to have legally existed.

An example of when a suspended quashing order may have been of great benefit is the case Ahmed v Her Majesty’s Treasury. I refer to this decision with respect to the noble and learned Lords who sat on the case, and I am conscious that there was not unanimity of view among the Bench on this issue. In Ahmed, the court ruled that orders freezing suspected al-Qaeda terrorist assets were ultra vires, requiring Parliament to rush through emergency legislation or risk suspected terrorists being able to access their funds. Had the court considered that it could, on the facts of the case, suspend the effect of the quashing order, it could have allowed the Government better to protect British citizens and Parliament would have had the time to carry out proper scrutiny of the replacement legislation.

An example of where prospective-only remedies would be beneficial is the British Academy of Songwriters, Composers and Authors’ challenge to the private copying exemption in copyright law. This exemption allowed individuals to copy works they had purchased for their private use. For the assistance of the House, I will give a more familiar, if perhaps not technologically bang-up-to-date, example: making a mix tape or copying the contents of a CD on to a computer. When the exemption was struck down, a prospective-only remedy would have protected actions individuals had previously taken relying on the private copying exemption. Although, in that case, the court was able to take other action to protect the historic actions of individuals, it was unable to rule that the regulations themselves were previously lawful.

I want to make it absolutely clear that the decision whether to use these remedies in any particular case will ultimately be for the court. The Government acknowledge that the new remedies may not always be appropriate and that in those circumstances, the court will be under no obligation to use them, either because they would not offer adequate redress or for some other good reason.

The important point is that we are putting two new tools into the judicial toolbox. We are doing so because there are circumstances where these new remedies will allow the court to provide a remedy that better serves the interests of justice and promotes good administration. Clause 1 includes a list of factors that courts must consider when determining the appropriate remedy. They are intended to provide consistency in the decision-making process.

Clause 2 implements another recommendation of the independent review: it ousts the supervisory jurisdiction of the High Court and Court of Session over the Upper Tribunal under certain circumstances. This overturns a Supreme Court judgment in 2011 that established what is now commonly known as a Cart judicial review, or an Eba judicial review in Scotland.

Let me set out the relevant background. Assume a claimant has been unsuccessful at the First-tier Tribunal and wants to appeal to the Upper Tribunal. The claimant would need permission from either the First-tier Tribunal or the Upper Tribunal. Assume that the claimant has been refused permission to appeal that decision by the First-tier Tribunal and has also been refused permission to appeal by the Upper Tribunal. A Cart judicial review is the claimant asking the High Court, or the Court of Session in Scotland, to review the Upper Tribunal’s refusal to allow the claimant permission to appeal.

If the House is still with me, it will appreciate that the first objection to this form of judicial review is that it involves three different courts deciding on a permission to appeal application. That is striking, especially when the Upper Tribunal is a specialist senior court broadly equivalent to the High Court. Indeed, many of those sitting in the Upper Tribunal are themselves High Court judges. The words of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in the original Cart judgment are most relevant:

“The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”


Secondly, even in cases where the High Court finds in favour of the applicant and grants judicial review, it does not necessarily mean that the underlying appeal will be successful. Although Cart judicial reviews occur on a range of issues, the majority concern immigration cases. Only around 3.4% of the underlying appeals are successful, compared to a general success rate of 30% to 50% for other judicial review cases.

The ousting of supervisory court jurisdiction contained in Clause 2 is clear in its intent and narrow in scope. It still allows for some oversight by the supervisory court in the very unlikely event the Upper Tribunal acts in bad faith or commits a fundamental breach of the principles of natural justice. In this regard, I commend the work of Policy Exchange’s Judicial Power Project, which has highlighted the problems associated with the Cart judgment for a number of years and produced several illuminating papers more broadly in the area of judicial review. Taken together, those two clauses deliver on the Government’s manifesto commitment in a sensible and measured way.

I will take a few moments to outline some of the other provisions in the Bill dealing with courts and tribunals against the background of the Covid pandemic.

In the criminal courts, the Bill introduces new measures to modernise court processes and improve efficiency by updating procedures and avoiding unnecessary hearings. Clause 3 will enable the swifter resolution of specified low-level offences, such as travelling on a train without a ticket, by giving adult defendants who intend to plead guilty the option of entering their plea and accepting a conviction and pre-determined penalty entirely online. But there are safeguards: there is a cooling-off period and the courts will have the power to set aside any conviction that appears unjust.

Defendants prosecuted for either-way cases will always be given a specified first hearing date at a magistrates’ court, but Clause 6 enables defendants to have the additional option to indicate a plea and proceed with the trial allocation procedure online. They can do that only with the support of a legal representative. Any online indication will become binding only when they appear at a subsequent court hearing to confirm it.

Clause 9 gives magistrates’ courts powers to proceed with a trial allocation decision in the absence of a defendant who fails to appear without good reason and where the magistrates consider it in the interests of justice to do so. Again, there are special provisions for children and to make sure that adult defendants who do not understand what has been going on have an opportunity later in the process to elect for jury trial.

Clause 11 helps to speed up court recovery by enabling the Crown Court to return more cases to the magistrates’ court where appropriate. That is estimated to save 400 Crown Court sitting days a year.

We have made changes to magistrates’ court sentencing powers. We are extending the sentencing powers from a maximum of six months’ imprisonment to 12 months for a single triable either-way offence. We will do that by commencing existing provisions in the Sentencing Act 2020 and the Criminal Justice Act 2003.

We have a number of measures that will streamline and simplify coroners’ court procedures, which will speed up the inquest process for bereaved families and reduce unnecessary distress. The coroner measures in the Bill have been designed to support the Chief Coroner and coroners as they implement their post-pandemic recovery plans and address the backlog of inquest cases which have accumulated due to the pandemic in many coroner areas.

Moving to employment tribunals, the Bill will introduce measures to transfer rule-making powers for the employment tribunals and Employment Appeal Tribunal to the Tribunal Procedure Committee. Transferring these powers to an independent judge-led committee will provide a swift and efficient rule-making process for these tribunals and deliver greater alignment within the unified tribunal system.

We are also setting up an online procedure rule committee, which will create rules for online procedures in the civil and family courts and in tribunals. That will ensure a consistency of online rules across the jurisdictions. However, that will not mean that users cannot engage with the court in more traditional ways. Although digital services will undoubtedly become the default, we understand that not everyone will choose to participate in a hearing by electronic means or will be able to use digital services to pursue their legal rights. The measures in the Bill will ensure that paper forms will remain available for citizens participating in proceedings. An offline option will always be available for those who need it.

Finally, the Bill will enable the development of a new, purpose-built combined courthouse in the City of London. Not only will the new courthouse provide 10 additional courtrooms but court users will also benefit by having access to more modern facilities.

In summary, the Bill, which is short but focused and wide-ranging, will enable sensible and practical reforms to judicial review. It will streamline and improve processes across the Courts & Tribunals Service. I look forward to discussing the Bill during this debate and henceforth, and indeed to continuing discussions I have already had with many Members of the House. For those essential reasons, I beg to move.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to all Members of your Lordships’ House who have contributed to a wide-ranging and, if I may say so, extremely good debate.

The noble Lord, Lord Ponsonby, referred to a number of pressure groups which had put out various press releases dealing with the judicial review measures. I have received those as well—I have even read them—and nothing in the Bill justifies the charge levelled against the Government of putting whole swathes of government policy or decision-making beyond the scope of review. The fact is that for some groups, any legislation in the field of judicial review is treated as necessarily improper and wrong in principle. Too many groups, I am afraid, wrote their press releases first and then read the Bill. That also goes, I have to say, for the Twitter feed of one Member of your Lordships’ House, who unfortunately cannot be with us this evening. This is not, to use the words of the noble Lord, Lord Beith, a full-frontal attack on judicial review. It is not even guerrilla tactics. What it is is a proportionate and sensible response.

I agree with the noble Baroness, Lady Chapman, that if it ain’t broke, don’t fix it—that is good Conservative philosophy—but my noble friend Lord Moylan showed us that there are improvements we can make and it is quite right for this House to look at judicial review, and that is even before we get to the jurisprudential niceties of what a quashing order actually is, what the difference is between a quashing order and a declaration, and why if you can get a declaration you need a quashing order at all. All those joys await us in Committee, when we get to what the noble and learned Lord, Lord Brown, referred to as “troublesome doctrines”. If it is troublesome for the noble and learned Lord, it is probably way beyond my—unpaid—pay grade.

Prospective-only quashing was raised by a number of noble Lords. The relevant point seems to be that there are plainly circumstances where a prospective-only quashing order is, and will be, in the best interests of justice and good administration. That is particularly relevant for individuals, businesses and families who may in good faith have taken actions based on regulations which are to be quashed. The noble Baroness, Lady Whitaker, referred to some very serious circumstances in some hypothetical examples. Those circumstances might well provide a good reason not to use a prospective quashing order, but the point is that the courts are not obligated to do so. What we want to do in the Bill is to provide the courts—I will use the metaphor again—with new tools in the toolbox but it is ultimately up to the judge to decide whether to take them out. To support this, Clause 1(8) lists factors which courts should consider when determining whether the new remedies are appropriate. The interests of justice is the overriding objective which governs everything the court does and that is, frankly, taken as read in anything the court does in any circumstances. But I say to the noble Lord, Lord Thomas of Gresford, that this does not limit the flexibility of the court. Clause 1(8) and (9) are there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.

I was grateful to the noble Lord, Lord Anderson of Ipswich, for his reference to other courts. It might perhaps be a first for a Conservative Minister to pray in aid the approach of the European Court of Justice. I am not going to fall into that particular elephant trap. But it is at least a response, and we will continue this in Committee, to the point made by the noble Lord, Lord Pannick, who seemed to say that the courts would end up in the position of having to deny compensation or damages, even in circumstances where it would be appropriate to do so. I respectfully say that that is not the case because ultimately the remedy is discretionary. However, I have to acknowledge the genius—if I may say—of the noble Lord in managing to get the names of the Reverend Moon and the noble Lord, Lord Howard, into the same sentence in Hansard. That must surely be a first.

The presumption in Clause 1 is properly circumscribed. The court is able to make a suitable order in each case. Therefore, I respectfully disagree with the approach of the noble Baroness, Lady Chakrabarti. New subsections (8) and (9) make that clear.

I am very happy to pick up the gauntlet that the noble Lord threw down about the Human Rights Act and to restate this Government’s commitment to the European Convention on Human Rights, which is the foundational underpinning of the Human Rights Act. I therefore take the comments of the noble Baroness, Lady Jones of Moulsecoomb, to heart: “It is not as bad as it could have been”—words last seen on my school report.

We want the judiciary to consider in each case the benefits that these remedies can bring. There will be cases in which they are appropriate and cases in which they are not, but ultimately the judge will decide. I therefore gratefully adopt the point, made by my noble friend Lord Sandhurst, that this will enable courts better to fashion a suitable remedy in each case.

My main response to the noble Lord, Lord Marks—we will continue to discuss this—is that the courts will look at all relevant circumstances when considering what remedy to provide. I got the impression that the noble Lord was tilting not so much at what is in this Bill but at what he fears might be in some future Bill. I respectfully encourage both him and the House to consider the legislation before us; we can consider any other legislation at the appropriate time.

The noble Lord, Lord Anderson of Ipswich, asked me the difference between adequate redress and effective remedies. I am sure we will discuss that in Committee. I have a note here; I will not have time to read it all out, but I am alive to the point and we will continue to discuss it.

The noble and learned Lord, Lord Judge, raised the Henry VIII powers. The powers being given to the Online Procedure Rule Committee and the Lord Chancellor are consistent with those given to other rule-making committees. There are checks and balances built into the legislation: the concurrence requirement, the affirmative resolution procedure, and the requirement for a majority of the committee to agree on changes to the rules. We have provided an explanation for the delegated powers in the Bill, including the criminal measures. We have published that online and sent it to the Delegated Powers and Regulatory Reform Committee.

I now turn to the Cart judicial review and whether the ouster, if we are to call it that, is a template for other Bills. The noble Lord, Lord Beith, said the Ministry of Justice had given the game away. I thought we had given a clear and straightforward answer to a question. The Government have made it clear on a number of occasions that there is nothing wrong with an ouster clause in principle; Parliament is able to do it. The real questions are whether it is suitable for the particular case and, critically, whether Parliament has used sufficiently clear words.

The history of the case law in this area is that there has been something of a legal arms race between the courts and Parliament. Parliament says something. The court says, “Are you sure you meant that? Maybe you meant something slightly different.” “Oh no”, says Parliament in the next Act, “We actually did mean that.” “Maybe it’s something else”, says the court. You have a judicial arms race ranging from Anisminic all the way up to Privacy International and culminating, as the noble Lord, Lord Howard, said, in a remarkable—I say with respect—obiter dictum, in the situation that there may be some clauses that the court simply will not enforce. This clause is in the form it is in because jurisprudential history has told us that if Parliament is to have an ouster clause, we need to be clear and precise.

So far as the figures are concerned—the success rate of Cart judicial reviews—the Government’s methodology is clearly set out in Annexe E to the consultation response. We are confident that the 3.4% figure is correct but, frankly, whether it is 0.2%, 3.4% or 5%, the critical point is that this is all very low compared with the 30% to 50% success rate in other types of judicial review.

Far from the sky falling in—the classic phrase, “fiat justicia ruat caelum”—the sky is not falling in here. As the noble and learned Lord, Lord Hope of Craighead, reminded us, we are going back to the recommendation of the Leggatt committee—and for those who did not know the Leggatt in question, that is Leggatt father not Leggatt son—and the idea that Lord Justice Leggatt would have proposed anything that amounted to a denial of justice is frankly fanciful. Therefore, I suggest that the ouster clause is entirely appropriate. My noble friend Lord Trevethin and Oaksey mentioned some of the exceptions to the ouster clause, and I am sure we will come back to that in Committee. There is nothing wrong with an ouster clause in principle and an ouster clause does not involve the Government in an attack on the rule of law. The two things are really quite different.

Before I leave the topic of judicial review, I am caught somewhere between my noble and learned friend Lord Garnier, who praised me for a cool head and a steady hand, and the implication from my noble friend Lord Howard, who urged me to go much further and mount a greater attack on judicial review. The measures in this Bill are sensible and appropriate, but my noble friend cited my colleague Minister Cartlidge in the other place in saying that this Bill is not necessarily the last word on judicial review. No doubt this House and the other place will consider any other measures that the Government may bring forward in due course.

I say in particular, and underline the point, that there is nothing wrong with Parliament acting to reverse particular decisions of the courts. That happens at the moment but we do not really see it because it is contained in Clause 187(3) of the fisheries Bill. Parliament can do it much more expressly. There is nothing wrong in our constitutional system, as the noble Lord, Lord Faulks, said—with Parliament acting to reverse particular court decisions. I am well aware of the Adams decision in principle and the problems that it has caused in Whitehall.

So far as what I may respectfully call the halfway house approach of the noble and learned Lord, Lord Etherton, on Cart, I will reflect on what he said. However, our assessment is that we would save 180 days of judicial time in putting forward our proposals. That is based on the resource expended in the Administrative Court in considering the high volume of Cart judicial review permission applications.

I turn to the criminal court measures. The noble Baroness, Lady Whitaker, asked about defendants who have no access to digital communications. Defendants would need actively to opt into the new online procedures introduced under Clause 3. They could choose at any point prior to accepting the conviction to have their case heard in court instead, including if they did not feel comfortable engaging online.

In response to the noble Lord, Lord Ponsonby of Shulbrede, who asked what happens if people accept a conviction under the automatic online procedure but do not know the consequences. The defendant is provided with all the information necessary to understand what is going on but, as I said in opening the debate, the Criminal Procedure Rules will provide a cooling-off period to allow defendants to change their minds and withdraw their plea on accepting a conviction under the new procedure, and the court will always have the power to set aside the conviction in the event that the defendant simply did not understand the procedure with which he was engaging.

Online justice is important. It does not amount to a denial of justice or justice being done in secret. Indeed, the days of local newspapers sending reporters to sit at the back of the magistrates’ court are long gone. It is far more likely that local newspapers will be able to follow those proceedings if they are broadcast online. That is why last week I introduced a statutory instrument to broadcast the Competition Appeal Tribunal online. I do not necessarily recommend it to your Lordships’ House, unless your Lordships are having trouble getting to sleep. It is a somewhat esoteric—with the greatest of respect to those who practise in it and administer justice. The underlying point is important: all our tribunals and courts should be available because we do justice in public. Online justice can also be public justice.

On the subject of tribunals, the noble and learned Lord, Lord Etherton, raised the proposal of legislating to allow pro bono cost orders to be made in tribunal proceedings. He was kind enough to share a draft of the proposed amendment with me. We support pro bono work as a means of enhancing access to justice for those who need it. We therefore support in principle measures which would allow cost orders to be made in tribunal cases where a party is represented pro bono. We have some concerns about the scope of the amendment because it is very wide—it applies to tribunals outside the unified tribunal structure. But we will certainly work with the Access to Justice Foundation and the noble and learned Lord on the proposed amendment.

Turning to the Online Procedure Rule Committee, I assure the noble and learned Lord, Lord Etherton, that it will work in co-ordination with other committees. Again, online justice can improve access to justice. Let us take a small trader who has a small debt to recover in the county court. Will they give up a day’s work and sit there waiting for their case to be called on in a face-to-face hearing? Perhaps not. Will they tune in, so to speak, to an online hearing, where they can stop where they are working and go on their laptop or iPad for an online hearing for one hour, vindicate their legal rights and get a judgment? Online justice can improve access to justice for those for whom the current justice system provides obstacles.

I do not want to unduly delay the House, but there were a couple of questions on coroners’ proceedings. I am sure we will debate those in Committee. The essential point when it comes to coroners is that we want to reduce unnecessary processes in the coroners’ courts. We want to maintain the distinction between a coroner’s court and other courts. A coroner’s court is inquisitorial, fact-finding, and ought not to be adversarial. We have to bear in mind that what is good for courts normally may not be good for coroners’ courts.

I am grateful to my noble and learned friend Lord Garnier, who welcomed the City of London courthouses. Whether that was a subtle request to be invited to the opening, I am not sure. But, in all seriousness, they will be a very valuable addition to the court estate. We are committed to maintaining London’s position as the pre-eminent dispute resolution city in the world.

Finally, on the territorial extent of the Bill, the point made by the noble and learned Lord, Lord Hope of Craighead, I am grateful to him for engaging with me; we have had a few conversations about this already. At the moment we think that the extent clause of the Bill is correct, but we are in discussions and of course we need to get it right. I assure him that we will continue to discuss that further with him.

Before I sit down, I hope that I too can take a moment to say how wonderful it is to see and hear from the noble Lord, Lord Hacking. In my tradition we have something called a second bar-mitzvah, which happens when you are 83—70 years plus 13. It seems that this House has introduced a similar idea of a second maiden speech 50 years after your first. I am sorry that the hats have gone. I remember full-bottomed wigs in this House, which sometimes usefully doubled as ear muffs. I do not know whether they will come back but I will certainly resist any amendment to the Bill which would seek to introduce them.

I am sure we will have very interesting and important discussions in Committee. I am very grateful to everyone who has contributed this evening but, for the moment, I commend the Bill to your Lordships’ House.

Bill read a second time and committed to a Committee of the Whole House.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the House do now resolve itself into Committee.

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

My Lords, I beg to move.

[Lord Scriven (LD)]

On a point of order, my Lords, questions on a Statement should have been for 15 minutes and not for 10 minutes.

--- Later in debate ---

[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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[Lord Falconer of Thoroton (Lab)]

If the court determines that regulations that impose a tax charge are unlawful but decides that this should be prospective only, is the consequence that the taxes raised before the date are “treated” as having been lawfully raised?

[Lord Wolfson of Tredegar (Con)]

If the noble and learned Lord will forgive me, I will come to precisely that point later in my speech, because it arises under the amendment put down by the noble Lord, Lord Ponsonby.

[Lord Falconer of Thoroton (Lab)]

I am raising it now because the noble Lord is placing huge emphasis on the word “treated”. I would be interested to know whether that word means that tax raised under unlawful regulations in the past remains treated as if it were raised lawfully.

[Lord Wolfson of Tredegar (Con)]

I will come to this point because these are two sides of the same coin. The short answer to the noble and learned Lord’s point is that it would be almost incomprehensible that a court would use a prospective order in circumstances where people have paid taxes that were necessarily unlawfully raised—so the question would not arise. It is a nice theoretical question, but it would not arise. That is why I will deal with it later, and I am happy to take further interventions at that stage, if we can try to deal with the points separately. I see where the noble and learned Lord is going, but at some point one has to live in the real world and consider whether a prospective-only order would be appropriate. Remember, the court has to look at the factors in subsection (8), including paragraph (f), which refers to

“any other matter that appears to the court to be relevant.”

It also has to look at where subsection (9) says

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

The idea that that could survive an unlawfully raised tax case is, I suggest, almost incomprehensible.

I will go back to where I was. We are not making an unlawful act lawful. The real question is: what is a remedy at all? In particular, what is a quashing order? This is something that has, frankly, bedevilled public law for some time. It is not clear that public lawyers, or indeed anyone else, have come up with a good answer to it. I suggest, however, that the remedy that the court gives, whether a quashing order or an order of prohibition, does not determine whether something was unlawful or not. It is the judgment and any declaration as to the state of the law that do that. The remedy decides what the effects of that unlawfulness should be, because there are cases where the court will declare that something was unlawful but not actually give a quashing order—but the action is still declared unlawful.

So this new power allows the court to modify the remedial effect of the quashing order so that, up to a point, the action or decision in question would be treated as being valid for all intents and purposes. The court is therefore doing its traditional job of declaring what the law is and what the law was, but it has greater flexibility in determining the real-world effects of its determination. I therefore respectfully agree with the way in which the noble Lord, Lord Anderson of Ipswich, put it. I heard his slightly in terrorem threat as to when we come to the presumption—but I will deal with that at that time.

That approach is consistent with public law as we understand it today. Judges are faced with situations where, despite a finding of unlawfulness, a quashing order does not issue, for a variety of reasons. I do not think therefore that it follows on principle that a finding of unlawfulness should always result in the voiding of the decision ab initio. I am grateful therefore for support on this point from the noble and learned Lords, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, although I will avoid getting into any relitigating in this Committee of either Spectrum or Ahmed—we will leave that for later groups and possibly further editions of memoirs.

We need to avoid an approach which would take us right back into the straitjacket of nullity, and the academically interesting but practically frustrating doctrines that characterised decisions from Anisminic to Ahmed. We are not giving the court a binary choice of quashing retrospectively or giving declarations that state the law but do not necessarily deal with the effects of the impugned decision, even if it is declared to be unlawful. That is my response to the first main point from the noble Lord, Lord Pannick.

His second contention is that the new powers draw the courts into policy questions. I say respectfully that we are simply not doing that. We are asking the courts to do what in many ways they do already, which is to assess the possible effects of their judgment on the parties and the public interest. It may well be the case that having given the courts these two new tools—I think the noble Lord, Lord Faulks, made this point—they do issue quashing orders in cases where they would not have done so if the only option open to them was an ab initio quashing order. Well, so be it. If Parliament has given them these extra tools, that is the way matters will work out. Subsection (8) sets out what we believe to be the pertinent factors, but we made it expressly a non-exhaustive list.

Courts have long recognised the principle that the administrative burden of rectifying the effects of a past decision can outweigh its potential benefits, especially if the Executive are rushed into action. Importantly, there are cases where the courts have recognised that regulations or policies that have a wide effect can create expectations for third parties: plans could have been made, contracts signed and money spent, all in pursuit of what everyone thought was a lawful policy.

We must not get lured into the example of somebody paying tax under regulation which turns out to be unlawful. People might have signed contracts on the basis of a regulation which turns out to be unlawful. They may have spent money or set up businesses. To undo all that could give rise to far more injustice than making sure that present and future situations are rectified. The example I gave at Second Reading, which the noble Lord, Lord Anderson of Ipswich, also mentioned, was the case of BASCA v Secretary of State for Business.

There is a further benefit to good administration, which is really what judicial review is all focused on anyway, which is that public bodies can make good a decision without having to revisit what can sometimes be long and drawn-out policy processes for the sake of a small error.

In cases relating to Heathrow expansion, for example, one point of contention was whether the Government had to take into account the Paris climate agreement. If the court had ended up finding that the decision not to take it into account was unlawful, it would surely have been far better to give a prospective order, so that the overall process of expansion was protected and the decision could be amended properly to take into account the relevant agreement. Quashing retrospectively would mean that the entire process would need to begin again from square one. A prospective remedy would allow the unlawfulness to be corrected at lower cost and in a shorter time, while still recognising—I underline this point—that the initial decision was unlawful.

I also emphasise the points in subsection (8)(c), which ask the court to have regard to

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and subsection (2), which allows the court to set conditions on the remedy. I hope that those provisions assuage any concerns that individual rights would be prejudiced—on the contrary, they ought to be taken into account by the court.

I have gone into some detail on that point because it was focused on by the Committee. I hope I can deal with the other amendments slightly more quickly with that background.

Amendment 3 removes the ability of the court to attach conditions to a suspended or prospective-only quashing order. These are intended to give the court maximum flexibility. For example, a court might want to make an order prospective only to reduce administrative chaos, but only on condition that parties who may have lost out financially are properly compensated. The conditions may not be necessary in every case, but it is an option for the court where appropriate.

Finally, Amendment 6 aims to ensure that the invalidity of quashed regulations can be relied on in criminal or civil proceedings. As I understand it, the concern of the noble Lord, Lord Ponsonby, is twofold. First, defendants could be prosecuted under regulations that have been ruled to be unlawful yet, because of the powers in this Bill, are treated as valid. That point was made by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks.

Secondly, this might mean that claimants or victims would be less able to obtain damages, restitution or compensation. As I have suggested already, the amendment is unnecessary. As the noble Lord, Lord Faulks, said, collateral challenge is not at issue. The Bill does not necessarily prevent such challenges, because it gives the courts powers to formulate the remedies appropriately. In circumstances where provisions which create criminal penalties are being challenged, and have been challenged successfully, I find it very unlikely that a court would decide to use a prospective-only remedy. That is not only because the list of factors includes in subsection (8)(c)

“the interests or expectations of persons who would benefit from the quashing of the impugned act”

and, in subsection (8)(f),

“any other matter that appears to the court to be relevant”.

That would, I think, mean that the court would certainly find a “good reason”—to use the language in subsection (9)—to use a retrospective quashing order, so that any persons, for example, who had paid tax would have a remedy in restitution.

In similar cases where a court considers a suspended remedy, the ability to set conditions on the order would also mitigate any risk of injustice. For example, a court could use a suspended quashing order with the condition that the authority in question does not take any further enforcement action. This goes back to my main point about maximum flexibility. For those reasons, I invite the noble Lords who have tabled these amendments not to press them.

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The noble Lord, Lord Ponsonby, has explained Amendments 8, 11 and 15, and I will not go further into them. However, Amendment 12 is important; it makes a point which is entirely obvious and it should be completely unnecessary. In deciding whether there is a detriment to good administration under new subsection (8)(b), the court must have regard to the principle that good administration is administration which is lawful. The noble and learned Lord, Lord Falconer, is right to say that where the Government suggest that this is only about remedies, and not about lawfulness, they miss the point that good administration requires the administration to be lawful. The clause, as it stands, detracts from that principle. It is, therefore, right that it should be reinforced in the way that these amendments suggest.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will respond to the amendments in this group in grouping order. I start by making a point about the list of factors. The purpose of the list of factors in subsection (8) is, as I said in the previous group, to allow the court to respond flexibly in the interests of delivering justice. However, it is important that the court considers—I emphasise “considers”—whether the remedies to be used are appropriate. These are the factors to which the court must have regard.

[Lord Falconer of Thoroton (Lab)]

Is the Government’s intention that these two remedies—new subsection (1)(a) and (b)—should be in a different category from every other remedy the court has under judicial review?

[Lord Wolfson of Tredegar (Con)]

Yes and no, in the sense that this gets us into the argument about the presumption, because the presumption applies to only these two remedies. To that extent, the point made by the noble and learned Lord is correct: that is the nature of the presumption, which we will get to in the next group. We want the court to specifically consider whether these remedies are appropriate and to use them, as the ending of new subsection (9)(b) says,

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

Because these are new remedies, we have set out a list of non-exhaustive factors which the court must consider. These are the factors in new subsection (8)—and it is expressly non-exhaustive in new subsection (8)(f). I agree with the noble and learned Lord that, as he put it, these are important considerations. However, we want to encourage consideration of their use; we are certainly not mandating their use in any case.

The other thing we want to do, by putting these factors in the Bill, is to provide consistency in the jurisprudence from the start as to how the remedies are used in the cases which come before the court. I remind the Committee that we consulted on the sort of factors that should be included in the list. We received some very useful contributions in response to that consultation. However, the “must” in new subsection (8)—which is contrary to the proposal in Amendment 7 before the Committee—requires the court to consider each of the factors in the list. Coming to the point made by the noble Lord, Lord Marks of Henley-on-Thames, the “must” does not require the court to find that every factor in the list applies. It does not require the court to say that all the factors are relevant in the instant case. The court may consider that some of these factors in the case before it are not relevant at all; some might have very limited weight or only marginal relevance. All the court must do is to consider them. As the noble Lord, Lord Faulks, pointed out, the court may add to its consideration absolutely anything it wants under new paragraph (f).

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

I am grateful to the noble Lord for giving way, but is that right in relation to new subsection (8)(c) and (d)? The court must have regard to the interests or expectations of persons who would benefit from the quashing and of persons who have relied on the impugned act. There is nothing voluntary about that. Those interests may be in conflict. Is it right that the court should always need to have regard to those interests?

[Lord Wolfson of Tredegar (Con)]

First, they may not apply at all, because there may, in a particular case, not be any person who would benefit from, or has relied on, the quashing. Secondly, the court must have regard to it, but only having regard to it, the court can give it such weight as it deems appropriate. Absolutely, some of these matters may be in conflict. That, as we have heard, is nothing novel in the field of judicial review when the court must consider what remedy to issue in every case. Indeed, it goes beyond judicial review. There is nothing new in principle here at all. What we are doing is setting out factors which the court should have regard to. The court can place such weight as it wants on any of these, and the court can have regard to any other factors as well.

[Lord Pannick (CB)]

I am very grateful to the Minister. He emphasises that the court can have regard to other factors. Does he accept that it would be permissible for the court to ask itself the question set out in Amendment 2? Is it satisfied that it is in the interests of justice to make one of these orders? Is it permissible for the court to say that it would not be in the interests of justice in the circumstances of this case, therefore it will not make one of these orders?

[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).

--- Later in debate ---

[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.

--- Later in debate ---

[Lord Beith (LD)]

On the basis of what the Minister has just argued, do I understand the Government’s position to be that unless this presumption is included, insufficient use will be made of these provisions and case law will not develop appropriately? Is that the Government’s position?

[Lord Wolfson of Tredegar (Con)]

The Government’s position is that the presumption will enable the case law to develop more quickly, perhaps, than it might otherwise do, because in each case the court will consider whether these remedies are appropriate. But there will be no case in which the remedy is provided where the court sees a good reason not to do so. In other words, we will not be in the position of Ahmed; that was the opposite. That was where at least some members of the court—in fact, the majority—wanted to do something and could not. We are not—I underline “not”—putting the court in a position where it will say, “We have to do this. We really don’t want to, but we have to”. You simply do not get there under subsections (9) and (10).

[Lord Falconer of Thoroton (Lab)]

Surely the courts will consider it when it is raised by the Government, and the question of the amount of time and how often the courts consider it will be dependent on the number of times it is raised as a proposition. I do not see why we need the presumption to get the courts to consider this.

[Lord Wolfson of Tredegar (Con)]

There are two parts of the answer to that. First, there are, as I said earlier, many judicial reviews in which it is not “the Government” in the way that the phrase “the Government” is used.

I am grateful to the noble and learned Lord, because the second point ties into a point I was going to come to. It is, I am afraid, a longer response than the speech which provoked it from the noble and learned Lord, Lord Judge, who said that this is a presumption in favour of the wrongdoer. I will try to answer the two points together. With great respect, I disagree for this reason: the presumption is not a presumption in favour of the wrongdoer. It is a presumption in favour of finding the appropriate remedy for the facts of the case. As we have heard, rightly, from a number of noble Lords, the claimant might not be the person who is actually most affected by the decision in question. There could be a whole class of people who are very severely affected by the decision in question who are not before the court. The claimant, who is before the court, is affected because they are sufficiently affected to have standing, but they may not be affected to the same degree. Therefore, it may not matter too much to the claimant as to whether the remedy is given. It may, on the facts of the case, not even matter too much to the defendant whether this remedy is given, but it may well affect third parties.

Another benefit of the presumption is that the court, so to speak, has to go through that thought process of whether this would be the appropriate remedy, thinking about people—we talked about the factors in subsection (8) earlier—who are not before the court, because on the facts of a particular case, the claimant may not actually be too bothered about whether these remedies are used. The defendant may not be too bothered whether the remedies are used, but it could well affect the position of third parties. Therefore, with respect, I dispute the proposition that this is a presumption in favour of the wrongdoer. It is in favour of the appropriate remedy.

[Lord Judge (CB)]

Why is the interests of justice test not quite sufficient for your purposes?

[Lord Wolfson of Tredegar (Con)]

I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.

If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.

[Baroness Chakrabarti (Lab)]

Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.

[Lord Wolfson of Tredegar (Con)]

With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?

As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.

[Lord Falconer of Thoroton (Lab)]

That is an interesting answer. If there are two judicial reviews going on and one holds, for example, that the regulations are unlawful—not in accordance with a statutory power—but says prospective-only, it is presumably open to a second judicial review, which might be going on in parallel, to say, “It is unlawful, and I argue for it not to be prospective-only, for the following reasons.” Would it be open to two judicial review courts to come to different conclusions on the same unlawfulness?

[Lord Wolfson of Tredegar (Con)]

We all know that judicial reviews have to be brought within three months of the act. Therefore, I suggest to the noble and learned Lord that it is highly unlikely that one will have two separate courts adjudicating on the same decision. If there were separate judicial reviews, they would be consolidated.

[Lord Falconer of Thoroton (Lab)]

Scotland and England?

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[Lord Wolfson of Tredegar (Con)]

The position would still be that proper case management can deal with all of this. The point that the noble and learned Lord makes is no different from the proposition that could apply now. You could have two judicial reviews where one court decides to give a quashing order and the other does not. That point is already out there, so to speak. There is nothing new conceptually added by this Bill.

[Lord Pannick (CB)]

I am grateful to the Minister for giving way. He expresses the hope that these provisions will enable the judiciary to build up a body of precedent in this area. Can he direct the Committee to any other statutory context which sets out in the way we see here a list of factors that judges are obliged to take into account, and then directs them by way of a presumption as to how discretion should be exercised? I cannot think of any. While I am on my feet, I thank him for being here tonight to deal with these amendments and giving up what would otherwise, I am sure, be an important date in his diary.

[Lord Wolfson of Tredegar (Con)]

I know that my right honourable friend the Prime Minister is still recovering from my absence from the dinner, but I am sure he will provide the usual entertainment and speech that my colleagues would expect.

On the wording of the new clause, there are two separate points. First: do we have statutes with presumptions? Well, of course we do. Secondly, do we have statutes which set out a list of factors to which the court must have regard on either an exhaustive—rare, I think—or, much more commonly, non-exhaustive basis? Yes, of course we do. My noble friend Lord Faulks gave the example of the Limitation Act—in Section 33, I think, from memory. The noble Lord’s real question is, therefore, do we have an instance where those two are put together? There is a short answer and a longer one. The short answer is that I cannot think of one off the top of my head, but I will have a look. The longer answer, however, is, with great respect: so what? If a presumption is not objectionable in itself, and if a list of factors on a non-exhaustive basis is not objectionable in itself, what, I ask rhetorically, makes it objectionable when those two features are put together? There is nothing objectionable about it.

I suggest that the real point put to me is not that this is objectionable, wrong or sinister, but that it is unnecessary. The answer to that is that it is beneficial for two reasons. First, to repeat the point, the court’s considering these powers will encourage the growth of the jurisprudence. Secondly, as I said to the noble and learned Lord, Lord Judge, the fact that the court has to consider them means that they will be considered in all cases, because there may well be cases where it is not in the interests of the party to the case that they be used, but it could be in the interest of third parties.

That ties into the point I was coming to on Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. I heard what she said—that she would prefer the other amendment but tabled this one on a probing basis—but let me respond to it. In addition to removing the presumption, it would replace it with a precondition that, before exercising the new remedial powers, the court must be satisfied that the modified quashing order would offer an effective remedy to the claimant and any other person materially affected by the impugned act. This proposed precondition is superfluous, because the remedies available in the Bill are more effective and tailored, taking into account the interests of both claimant and third parties. The problem with the wording of her amendment is, as the noble Lord, Lord Anderson, pointed out, the copyright case. The wording used is not very good for third parties.

However, in that context, I should pick up a point made by the noble Baroness and by the noble Lords, Lord Marks and Lord Beith, concerning the phrase “adequate redress”, which was first made by the noble Lord, Lord Anderson of Ipswich, at Second Reading, if I remember correctly. We have heard the argument that we should replace that phrase with the phrase “effective remedy”, as also used in Amendment 14. I said in my closing speech at Second Reading, in response to the noble Lord, Lord Anderson, that I would reflect on this point with officials, and, of course, we have. I hope I can take a moment to explain the rationale behind the drafting.

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[Baroness Chakrabarti (Lab)]

I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.

So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.

[Lord Wolfson of Tredegar (Con)]

I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.

There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.

I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have contributed to this notable debate—notable not just for its quality but for the rare and even forceful unanimity that it evoked among nearly all lawyers who spoke. I exempt, of course, the Minister, who was paid, or possibly not paid, for taking the opposing view.

I thought that the noble and learned Lord, Lord Etherton, put it most pithily when he said that the presumption was unnecessary, wrong in principle and potentially dangerous in practice. He was swiftly outdone by the noble and learned Lord, Lord Judge, who, if I may say so, correctly described it as a presumption on favour of the wrongdoer—the person against whom a quashing order is to be made. Even the noble Lord, Lord Faulks, who attempted a characteristically fair-minded defence of the presumption, confessed that he was not persuaded that it was necessary.

Of its necessity, I was not persuaded by the Minister in his speech. He still seemed unsure whether it is a presumption at all—but if it is not a presumption, what on earth is it, save for a sort of fertiliser for, as he put it, encouraging the growth of jurisprudence, which I think we are all agreed it would be? I hope that the Minister is right that “adequate redress” is broader than “effective remedy”, but, sadly, neither his words, or still less mine, are any substitute for the authoritative judicial ruling that would no doubt take great time and effort to achieve. These subsections are not something that we should have in this Bill, and they would be a damaging precedent for other Bills.

Finally, we are in the extraordinarily privileged position in this Committee to hear from very senior judges whose lives have been devoted to the interpretation of such laws what the practical defects of proposed laws would be. I hope that we will not only hear them but act accordingly when, as we surely will, we come back to this on Report. In the meantime, I beg leave to withdraw the amendment.

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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.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[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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[Lord Pannick (CB)]

I am grateful to the Minister. That was the point that I was seeking to make. The last time the online procedure Bill came before Parliament, in 2019, this Committee debated very carefully whether it was appropriate to allow the Lord Chancellor to determine which civil matters should be dealt with online. Your Lordships’ Constitution Committee recommended that it was inappropriate for the Lord Chancellor to decide such matters. This House debated and the Government gave way. The Minister’s predecessor —not quite his predecessor—the noble and learned Lord, Lord Keen, who was speaking on behalf of the Government, accepted that it was appropriate for the concurrence of the Lord Chief Justice to be required. Why does the Minister think it is different in the criminal context? I suggest that there is even greater sensitivity in the criminal context than in the civil context and that the concurrence of the head of the judiciary is required.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.

[Baroness Chakrabarti (Lab)]

Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.

Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?

[Lord Wolfson of Tredegar (Con)]

I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.

I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.

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

Before I consider our position, can I just ask when the cooling-off period is likely to kick in. In other words, does it start immediately upon the indication of a plea of guilty or will it be following the conviction that is a consequence of the online plea?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will give an answer, but I will check it and if I get it wrong I will write to the noble Lord. I think the way it works is that it will be immediately after conviction. The conviction is almost instantaneous with submitting the online form because it is an online procedure. Therefore, the cooling-off procedure would start immediately after conviction and would run from that time. Indeed, I have just received a message to say that that is correct.

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

I am grateful to the noble Lord for that clarification; I will consider it.

I will of course withdraw the amendment at this stage, but I see the process that we have had today as calling for continuing discussion. Although it is helpful to know from the Minister that the financial consequences will be spelled out precisely in the offer, he did not address the non-financial consequences—the personal consequences—in enough detail. Of course I take his point that, at this stage, this procedure will apply only to travelling on trains without a ticket, what used to be called riding on trams without a ticket or unlicensed fishing. In those circumstances, limited to those three offences, the consequences might not be as serious as they otherwise might be, but since the statute refers to all summary-only, non-imprisonable offences, it potentially goes very much wider. It would be very helpful if, during continuing discussions, we were assured about the criteria that would be applied in much more detail for its application to future offences because one can see the distinction simply from the offences that he mentioned and we cannot be sure what will happen.

The amendment tabled by the noble Lord, Lord Pannick, seems to have a great deal to commend it. He raised it as a query to the Minister. If there were an amendment to that effect on Report I rather expect that it would have a lot of support in the House. Having said that, I beg leave to withdraw the amendment.

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[Lord Mackay of Clashfern (Con)]

I strongly agree that the magistracy is essentially a local service built up by knowledge of the area in which magistrates are asked to administer justice. It would be an extraordinary development to cut that out, because the knowledge of what is going on in their area is a source of strength to the magistracy in issuing judgments which, as has been pointed out, are a very high proportion of the total number dispensed throughout the country. On the other hand, I can see that sometimes a technical relief from the particularity of the boundary may be important. Perhaps that can be done without losing the principle of the locality of the magistracy.

I support what the noble Baroness, Lady Chakrabarti, said about the help that we are getting in this respect, having here a practising magistrate who knows the difficulties that arise and can be dealt with by personal experience. I also support the idea that we must have some system for noticing what the difficulties of different people are in relation to the courts, particularly women and girls. I imagine that this has to do with the treatment given by the courts, not particularly the question of certain types of crime that may not always be getting the result that we might expect in various situations.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group, Amendments 30, 37 and 54, all deal with reviews of the criminal justice system or criminal court procedure. I will take them in turn.

Amendment 30 would require the Secretary of State to commission a review and publish a report on the effectiveness of the single justice procedure. The review would consider the transparency of the procedure and its use in the prosecution of Covid-19 offences. Let me begin by allying myself to the comments of the noble Baroness, Lady Chakrabarti, and thanking the noble Lord, Lord Ponsonby, for his service as a magistrate, and for what that service gives us in these debates: a real, from-the-front-line addition on how things are going. Since that has been raised, I also thank more generally all magistrates. As the noble Lord, Lord Marks, said, they are the backbone of our criminal justice system. During the pandemic, they went above and beyond to keep the wheels of justice turning.

On the substance of the single justice procedure, I should first make it clear that a case dealt with under the single justice procedure is dealt with in the same way as any other case, except that a single magistrate can deal with it and, as we have heard, the hearing need not be in public. The magistrate must comply with the same legislative safeguards as all other proceedings, and the Sentencing Council’s sentencing guidelines apply in the same way. Importantly, as with the previous group, the single justice procedure is entirely optional. Also, all processes are reviewed regularly to ensure that it is easy to navigate and accessible. Following consultation, the single justice procedure notice has recently been revised to make it even clearer for users.

We have also worked closely with the media to ensure that this procedure is accessible and open, because justice in this country is public justice. While the criminal procedure rules require all courts to give certain additional information on individual cases upon request from the media and other interested third parties, courts are currently obliged to give more information on cases prosecuted under the single justice procedure. That would include the prosecution’s statement of facts and the defendant’s statement in mitigation if there was one.

In addition, a list of pending single justice procedure cases is published each day online and is available to the public. The media also receive a more detailed list of these cases so that they can report on them if they so wish. So, actually, the media receive more information about cases dealt with under this procedure than traditional proceedings, where they get the information only if they actually turn up to the hearing. As I am sure the noble Lord, Lord Ponsonby, would confirm, it is now quite rare that local newspapers turn up. So, far from reducing transparency, the online procedure actually increases it, and I am sure that everyone in the Committee would agree that that is a very good thing.

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[Lord Beith (LD)]

I am grateful to the Minister. Does he think that he ought to consider the impact that would flow from removing local justice areas, when we already find that taking cases to the furthest point within a local justice area—because there is a particularly well-equipped courtroom there, say—means that magistrates are finding that most of the cases they will be asked to sit on are taking place 50 or 60 miles away? It is extremely difficult to recruit magistrates who are prepared to accept that distance, and it does not do much for local justice.

[Lord Wolfson of Tredegar (Con)]

Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—

[Lord Falconer of Thoroton (Lab)]

The legislative form that this is taking, in Clause 43(1), is:

“Local justice areas are abolished.”


The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?

[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.

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

My Lords, the first two amendments in this group, Amendments 31 and 32 from the noble Lord, Lord Ponsonby, would add requirements that an adult accused should have received legal representation and had a physical and mental health assessment confirming their capacity to understand the meaning and consequences of a guilty plea in order to participate in proceedings before the court seeks an indication of a guilty plea in writing. Amendment 33, also from the noble Lord, Lord Ponsonby, would require information to be given to the accused as to the consequences of a guilty plea. These are similar to some of the issues we have canvassed before this afternoon. But, again, I support the principle of these amendments. They are directed at the proposition that before a court proceeds to accept a guilty plea, it must be satisfied that the accused has full capacity and understands the consequences.

These are complex proposals, and the consequences of a guilty plea are challenging to understand. They may, for example, include the consequence of being committed to the Crown Court for sentencing under new Section 17ZB of the Magistrates’ Court Act 1980. It is important to understand how these points are going to be addressed in practice, and I hope the Minister will help us with that.

As for the next amendment from the noble Lord, Lord Ponsonby, I agree with him that taking a guilty plea from children, as proposed by Clause 8, is unacceptable, and I support him in opposing that clause and, consequently, in opposing Clause 14, which would, independently as well as consequently, water down the involvement of parents and guardians in child cases. That involvement is, I suggest, extremely important. There are two principal reasons for my opposition. First, it is extremely difficult to guarantee that a child of whatever age under 18 will fully understand the proceedings or consequences before giving an indication of a guilty plea. Secondly, a criminal charge often brings matters, risks and difficulties that are faced by particular children to the attention of the court when they attend court. That gives the court and other agencies an opportunity to address those difficulties, and that opportunity ought to be available and taken as soon as possible and before any question of indicating a guilty plea arises. For the same reasons, I support Amendment 34 in relation to Clause 9, which would permit allocation hearings in respect of children or young people to proceed in the absence of the accused. That does not seem appropriate.

These are difficult provisions for indicating a guilty plea in writing, and as I have said, it is difficult to see how they will work in practice. While they may prove to be inoffensive if introduced, the sunsetting provisions in Amendment 35 are surely sensible. If our concerns turn out to be groundless, Parliament can revisit the procedures on the basis of evidence of how they have worked out in practice and make them permanent or extend them. Otherwise, they ought to lapse after two years, as is suggested in the amendment.

I turn next to Clause 13, permitting the extension of a magistrate’s sentencing powers. I cannot, at the moment, for the life of me see why the noble Lord, Lord Deben, and the noble and learned Lord, Lord Falconer, are not right to say this is a matter that ought to be considered discretely and independently by Parliament, rather than having delegated powers enable the Secretary of State to increase magistrates’ sentencing powers at a later date by executive action. That does not seem appropriate, and no good reason has been advanced for why that should be right.

As to the threat to jury trial considered by the noble Baroness, Lady Chakrabarti, I share her belief that increasing sentencing powers is likely to lead to more, rather than fewer, defendants opting for jury trial. The greater sentencing powers of magistrates would lead only to defendants taking their chances with a jury trial rather than staying in a magistrates’ court, and forfeiting what has been traditionally the incentive to stick with the magistrates—that they are likely to impose a shorter sentence and unlikely to commit for sentence.

As a matter of principle, I am instinctively opposed to increasing the sentencing powers of magistrates. At the same time, along with many who have considered the evidence, we are strongly opposed to short prison sentences. Against that, there is a serious risk that a move to permit 12-month sentences, when previously six-month sentences were the maximum that could have been imposed, will increase the use of custodial sentences of a longer period where community sentences would be more appropriate. I find that a difficult issue to face. We should be concentrating on increasing the use of community sentences; and increasing magistrates’ powers to 12 months for a single offence is entirely wrong. But I wait to see how the Minister approaches this change and justifies it.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. It covers a number of different points, but, essentially, it focuses on the procedure for triable either-way cases and the recent announcement that the Government intend to extend magistrates’ courts’ sentencing powers from six months to 12.

Let me start with amendments to Clause 6 —Amendments 31, 32 and 33. They all seek to add further safeguards to Clause 6, but I hope to explain why the Government consider them to be unnecessary. I share the concern of the noble Lord, Lord Ponsonby, to ensure that defendants are able to seek legal representation in criminal proceedings at the earliest opportunity. The central point here is that a defendant is unable to proceed with the new online procedures without the support of a legal representative. That is because the online procedures we are dealing with here are made possible through the common platform, which is currently not accessible by individual defendants. So, as currently, legal representatives would be needed to access the platform, and they will then be able to help identify whether a defendant has particular vulnerabilities or does not understand the process even after explanation.

Defendants, as in a previous group, will be under no obligation to accept an invitation to proceed online. They can choose to discuss these matters at a traditional court hearing if they should so wish. Where a defendant fails to take up the offer of engaging online, the proceedings will simply default back to a normal court-based procedure. Furthermore, the court itself will be able to stop an online proceeding and call an in-court hearing if it has any concern or would like the defendant, for whatever reason, to attend court in a contested case. That would include cases where, for example, the court had concern about a defendant’s mental health or mental capacity, or where, for any other reason, the court considered online proceedings inappropriate.

Amendment 33 would require that defendants are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. Of course, getting a criminal record is not something that should ever be taken lightly, but Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea.

Where a defendant does decide to proceed with the online procedure, all the communication that would take place between the parties and the court to facilitate effective case management, which would otherwise take place in court, can take place online. A defendant will, for example, still be able to seek an indication of whether a custodial sentence would be likely if they were to plead guilty and were dealt with at the magistrates’ court. Further, any online indication of plea—and that is what we are dealing with, an indication of plea—will remain just that, an indication. A defendant is able to withdraw it at any time before their first appearance at a hearing in court. They will still need to enter a binding formal plea before the court at that hearing and any online indication of plea cannot be admitted as evidence in later proceedings. So I suggest that we have enough safeguards in place to ensure that defendants are appropriately supported.

Given that there has been some recent press coverage of the online procedure, I reiterate the important point I made earlier: the principle of open justice will be maintained for cases dealt with under this new online procedure. Magistrates’ courts will publish the result of these proceedings in the usual way and, and I said earlier, various measures in the Bill will actually mean that the press get more material here than they would from a traditional format.

Amendment 34 to Clause 9 would prevent the courts having a power to proceed with trial allocation decisions for children who fail to appear at their hearing without an acceptable reason and where it would have been in the interests of justice to progress the case. It is important that all cases, but particularly cases involving children, are progressed as expeditiously as possible, so that interventions to tackle offending are not delayed. This provision recognises that with the increased vulnerability of child defendants there will need to be additional safeguards.

Clause 9(5) creates a new, but clearly defined, set of circumstances that would enable a court to allocate a child’s case in their absence. A point to underline is that these conditions are far more stringent than those prescribed for adults, even though children cannot elect for jury trial.

There are essentially five conditions. The first is that the child has been invited, but failed, to provide an online indication of plea and that, in accordance with Clause 14, the court should, where appropriate, have made sure that the child’s parent or guardian was aware of the written proceedings. The second condition is that the child has then also failed to appear at the subsequent allocation hearing. The third is that the court must be satisfied that the child was served with adequate notice of the hearing or had previously appeared at a hearing and was therefore aware of the proceedings. The fourth condition is that the court does not consider that there is an acceptable reason for the child’s failure to appear. The fifth is that the court must be satisfied that it would not be contrary to the interests of justice to proceed to allocate the case in the child’s absence. There are a number of other existing safeguards—I will not go through them all—for example, when a child is arrested, the law requires that a parent or guardian must be notified as soon as possible. For prosecutions initiated by summons or postal requisition, the notice is also sent to the child’s parents or guardian.

Amendment 35 would add a sunset clause, which would essentially switch off the provisions in Clauses 6 to 9 two years after Royal Assent, unless Parliament passed a resolution to prevent it. I understand that the intention is to ensure that defendants are not disadvantaged, but I suggest it is unnecessary for three reasons.

First, as the Committee will appreciate, magistrates’ courts already have powers to allocate in the defendant’s absence. The online procedures are already used effectively in magistrates’ courts; we are simply extending the circumstances in which these powers can be used. Secondly, these measures do not replace current tried and tested procedures; they offer more options to defendants to save time and reduce the number of unnecessary appearances at court. If a defendant does not want to go online, the proceedings simply default to the usual court-based proceedings on their allotted hearing date. Thirdly, as I have said, there are safeguards to protect defendants who need protection, particularly children but also others, recognising that we have a distinct youth justice system.

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Moved by

[Lord Wolfson of Tredegar]

38: After Clause 23, insert the following new Clause—
“Power to make certain provision about dispute-resolution services
(1) This section applies to Online Procedure Rules which provide—(a) for the transfer by electronic means of information held for the purposes of an online dispute-resolution service to a court or tribunal, or(b) for a court or tribunal to take into account, for any purpose, steps that a party to proceedings has or has not taken in relation to an online dispute-resolution service.(2) The Rules may be expressed so that their application in relation to a particular service depends on things done by a particular person from time to time.(3) The Rules may, for example, refer to such services as—(a) appear from time to time in a list published by a particular person, or(b) are from time to time certified by a particular person as complying with particular standards.(4) In this section—“online dispute-resolution service” means a service accessible by electronic means for facilitating the resolution of disputes without legal proceedings;“particular person” and “particular standards” include, respectively, a person of a particular description and standards of a particular description.”Member’s explanatory statement
This new clause enables Online Procedure Rules to allow things done by third parties to determine the application of the Rules to particular online dispute-resolution services.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that there is another amendment in this group, Amendment 39, in the name of the noble Lord, Lord Ponsonby of Shulbrede. I hope the Committee will find it helpful if I speak to my amendment and then respond in the normal way to the noble Lord’s amendment.

Both amendments relate to the new Online Procedure Rule Committee, OPRC, created by the Bill. Amendment 38 seeks to give, by way of a new clause, greater flexibility to the Online Procedure Rule Committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. This will enable parties who try to resolve their dispute online prior to commencing legal proceedings to then transfer into the legal process in a seamless and efficient way if it proves impossible to resolve some or all of their dispute. The key point is that the IT processes will enable these pre-action dispute resolution processes to roll over into the online legal processes where that is necessary, saving parties time and cost in preparing a new claim. I am grateful to members of the Committee who have taken time to engage with me on this proposed government amendment.

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[Lord Pannick (CB)]

My Lords, the Minister rightly said that his Amendment 38 is a modest one, but this group of amendments raises more general concerns, as the noble Baroness, Lady Chapman, has just explained.

The noble Lord, Lord Deben, may be interested to know, in the light of his earlier observations, that Clause 19 gives the Minister a power to make rules that require that specified kinds of legal proceedings “must” be conducted, progressed or disposed of by electronic means. The Minister could say, in principle, that all cases in the Court of Appeal of a civil nature will not be conducted by oral hearings; they will disposed of by pressing a button on the computer, and the judge will then decide. That is quite a remarkable power, the noble Lord may think.

[Lord Wolfson of Tredegar (Con)]

Look at subsection (6).

[Lord Pannick (CB)]

The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.

When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?

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

My Lords, I will speak first to government Amendment 38, which makes provision for pre-action dispute resolution services and procedures to be taken into the overall procedure within the Online Procedure Rules. In principle, we particularly welcome this recognition of the importance of alternative dispute resolution procedures in the civil justice context. We accept the Government’s point that it is even more important in the context of online procedures, where modernisation and simplicity of approach are at the forefront of the Government’s aims, than it is in the context of conventional procedures to make provision for online alternative dispute resolution procedures to be brought into the overall picture.

However, what is proposed is a power only; it is not even really a template, as the noble and learned Lord, Lord Falconer, pointed out, although not in those words. We simply stress how important it will be, in the context of the Online Procedure Rules, to integrate the arrangements to facilitate ADR into online procedures in a clear way. The noble and learned Lord pointed out particular areas where the provisions were very unclear about who would be responsible for those procedures and how they would be authorised, but I would welcome clarification from the Government as to how they propose to proceed in that regard.

Amendment 39 on online procedural assistance in the name of the noble Lord, Lord Ponsonby, which was moved by the noble Baroness, Lady Chapman of Darlington, and to which I have added my name, is comprehensive. At its heart is the aim in proposed subsection (1) of introducing a statutory duty to provide assistance to those who need help navigating online procedures. That is an adjunct to the importance attached to them in the Bill itself. We of course accept that the Government intend to ensure the availability of assistance with the new procedures and we welcome the introduction of these online procedures. We were also reminded by the noble Lord, Lord Pannick, of the limitations of the procedures that the noble and learned Lord, Lord Keen, promised when he was Advocate-General and we last debated these procedures. Our concern is that what the Bill proposes is very much wider and could, as the noble Lord, Lord Pannick, pointed out, cover family proceedings, proceedings for injunctive relief—almost any proceedings of whatever magnitude. However that might be, the importance of online assistance becomes greater with the importance of the proceedings to the parties.

The noble Baroness, Lady Chapman, talked about digital exclusion by virtue of skills, but it is not only a question of skills. She is absolutely right that many people are unable to handle digital technology through age, disability or vulnerability, as well as, of course, through lack of education or simply not having kept up with advances in technology. There is also the lack of availability of fast broadband and an inability to access the internet in the way those of us who live in areas of fast broadband are becoming completely used to. There is the availability of technology and computers. The answer might be that people can go to their local library, but for many people in rural areas, local libraries are very distant and lacking in decent equipment. It is not enough to say that anybody can access a computer.

That ties in with the financial abilities and means of people who may be litigants. If they do not have the equipment, as well as not having the skills, they cannot access it. For us, the cardinal principle is that no one, however unable to access digital procedures without help for whatever reason, should be disadvantaged by the new procedures. That can only be answered by a duty upon the Lord Chancellor to provide digital and online assistance. There needs to be assistance to a sufficient level that every litigant understands the procedures and how they are to be implemented and is able to have personal, telephone or remote appointments, whatever is necessary, to enable them to participate in procedures at every stage online. As per our amendment, this also means assistance with language in terms of interpretation or translation for those for whom English is not their first language.

An important part of our amendment is the prescription of an annual evaluation of online procedural assistance and the collection of information about how it is proceeding. I add only this: we are concerned to see that it will remain possible to take all steps in proceedings by paper means. This has been promised by the Government, as the noble Lord, Lord Pannick, pointed out. I am confident that the number of those requiring step assistance by paper proceedings will reduce as time passes. However, the ability to take all steps on paper, at any stage, must remain. This is essential to honour the fundamental principle of our justice system that we preserve universal access to enable people to enforce and defend their rights.

[Lord Wolfson of Tredegar (Con)]

I will first say a word about the amendment which I have put before the Committee. Dispute resolution is fundamental, and it is becoming ever more important. Although the noble Lord, Lord Marks, referred to alternative dispute resolution, as he may have heard me say before, we have sought to drop the “A”. We do not call it ADR anymore, we call it DR, because we do not see it as alternative, like alternative medicine. I can see my postbag about to grow, but I am going to say it anyway: alternative medicine is sometimes seen as somewhat outré and whether it actually works is questionable. Dispute resolution is not unusual; it is now a central part of resolving disputes and we know that it works. We want to ensure that people who engage in dispute resolution can do so online and—I will come to the point made by the noble Lord, Lord Pannick, in a moment—that they can also vindicate their legal rights online when it is appropriate to do so. I give the example that I have given before: there is a small trader who has a debt of £13,000 and the hearing is going to last for 90 minutes. Do we expect that person to take a day off work and go to the local county court and hang around when, instead, they could continue their job and—I was going to say “dial in” for the benefit for the mystery person on the Opposition Front Bench—go online, engage in the court hearing and vindicate their legal rights.

I will come back to the safeguards in a moment. Properly used, the online procedures are a way of enabling people to vindicate their legal rights. In justice, like in many other parts of our society, we have been forced to go online more during the pandemic and we have seen that it can work. The noble Lord, Lord Pannick, talked about when I was previously at the Bar. Before I joined your Lordships’ House, I had to take a three-week trial entirely online. That trial could not—and probably would not—have taken place five years ago, but it took place online. I accept that it was a commercial case, and I will come to the points about family and other cases a little later. However, these proceedings and the Online Procedure Rule Committee are focused on ensuring that the civil justice system can respond to, and is appropriate for, the sort of world in which we now live.

Having said that, the noble Baroness—

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

I am sorry to interrupt the noble and learned Lord and am grateful for him giving way. May I draw him back to Amendment 38? I completely accept and take on the chin his criticism of my use of the word “alternative”, but I used it as a distinction from procedures by court. I understand his Amendment 38 to be concerned with out of court procedures, with what I used to call “alternative dispute resolution” procedures, but never will again. Nevertheless, it is concerned with integrating, as I understand it, dispute resolution procedures organised by third parties, which are not applicable to the example that he gave of having your rights vindicated by reference to the procedures that are allowed by Clause 19 of having court procedures online, which is slightly different.

[Lord Wolfson of Tredegar (Con)]

The noble Lord is absolutely right, but I was seeking to make the point more broadly. I will come to the court procedures, but the noble Lord is right: Amendment 38 seeks to ensure that, when people go to pre-court dispute resolution—I think everybody in the Committee wants to encourage that—if the case does not settle in whole or even in part, they can seamlessly transition to the online court procedure. They do not have to repopulate forms or send in new documents. Of course, I emphasise the mediation bit of it remains without prejudice, obviously, that is fundamental to mediation. Amendment 38 is to ensure that there is a set of protocols, essentially, to make sure that we can have that seamless transition. It is part of enabling people to vindicate their legal rights, either by way of an out of court settlement, with which they are satisfied, or by migrating into the online court space.

[Lord Thomas of Gresford (LD)]

May I assist the Minister with an illustration? Four weeks ago, a close relative was owed a significant sum of money and used dispute resolution procedures. He filled in a claim form online, and the debtor filled in a claim form also online. There was a half-hour hearing on the telephone with a judge who reserved his judgment and fortunately found judgment for my relative very quickly after. It shows that it can be done. In that sort of circumstance, it saves days of problems in filling out written documents and attending at court.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord for his intervention. Absolutely, this is about enabling people to vindicate their legal rights. The Government are conscious—we put a clause in the Bill specifically for this reason—that we need to safeguard those who cannot get online, either because they do not have proper broadband or proper facilities or because they are incapable for whatever reason of using computers.

I anticipated that it would be the noble Lord, Lord Ponsonby, who spoke, so I apologise to the noble Baroness, Lady Chapman for that. She made absolutely the right point. We agree that assistance may well be needed. Although we do not accept Amendment 39, that is because the Bill already places a duty on the Lord Chancellor to arrange for such support. Extensive measures, which I will mention, have been put in place to make sure that assistance is provided to those who need it. We need to distinguish between online procedures, that is, the form-filling applications, and an online hearing. The two things are quite different.

So far as online procedures are concerned, I recognise that some users may find it difficult to use digital services. Therefore, I should make it absolutely clear that there will be no change in the current options to use paper forms and processes. As the noble Lord, Lord Marks, says, the cardinal principle is that nobody will be disadvantaged.

For those who choose to conduct proceedings using paper routes, they will be available in the same manner as at present. At HMCTS, we are improving and streamlining the paper routes and are committed to making sure that the level of service is the same no matter whether litigants are engaging with the justice system through online or offline routes. We will therefore be offering substantial support for those who want to use online routes and who can do so with support.

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[Lord Falconer of Thoroton (Lab)]

I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules

“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”

I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?

[Lord Wolfson of Tredegar (Con)]

That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.

As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:

“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”


I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:

“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.


I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.

However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.

On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.

I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.

These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—

[Lord Pannick (CB)]

My concern is not about online hearings, because they do take place and may be convenient in some circumstances; it is that Chapter 2 allows for no hearings at all. It allows for legal disputes, if the Online Procedure Rule Committee so authorises, to be conducted entirely electronically, which means by the submission of arguments in writing. The Minister really needs to recognise that that is authorised by Clause 19. He says that this is only if the independent Online Procedure Rule Committee so decides, but will he accept that, under Clause 22, that committee consists of three people who are appointed by the Lord Chief Justice and three people who are appointed by the Lord Chancellor, so the Lord Chancellor has a very considerable influence over the composition of that committee?

The Minister may be coming to this question. Does it remain the intention of the Government—who clearly have a very influential role in this—that these provisions should be used only for money claims up to £25,000? The origin of that origin, as the Minister will confirm, was the report of Sir Michael Briggs, now Lord Justice Briggs. He investigated these matters and proposed a £25,000 limit which would always apply to this category of case. There would be no hearing. It would be conducted entirely electronically—although perhaps, in exceptional cases, the judge would have a discretion to decide that the matter would be conducted in an oral hearing.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord. He is absolutely right about the three/three appointments, but I would respectfully direct his attention to two features of Clause 22. First, whom the Lord Chancellor can appoint is circumscribed by subsection (4). One of the three has to be a barrister, solicitor or legal executive. The second must have

“experience in, and knowledge of, the lay advice sector”.

The third is somebody

“who has experience in, and knowledge of, information technology relating to end-users’ experience of internet portals.”

The second safeguard is in subsection (7):

“Before appointing a person under subsection (4)(a)”


there is a requirement on the Lord Chancellor to consult with

“the Lord Chief Justice … the Senior President of Tribunals, and … the relevant authorised body.”

So this does not enable the Lord Chancellor just to appoint three friendly faces—although I am sure no Lord Chancellor would do so. They must be people with a particular expertise, and there is a consultation requirement. I accept that the Lord Chief Justice, the Senior President of Tribunals or the authorised body do not have a veto, but, in the real world, it will ensure that we have proper people on the committee.

If I may, I will come back to the £25,000 point in a moment. I am conscious that I want to finish giving the Committee an assurance about assistance, so I will finish this point and then come back to the £25,000 point.

The assistance currently provided by HMCTS is offered over the phone through our Courts and Tribunal Service Centres. HMCTS has also designed and tested a digital support service to ensure that access is available even for those who need more intense support. The contract was awarded to We Are Digital in late 2021. We expect full national coverage by the late spring of this year. Users will be able to attend in-person appointments. It will also be possible for a trainer to attend an applicant’s home for in-home, face-to-face support. If the noble Baroness passes to me confidentially the name of the relevant individual, I might even be able to arrange a home visit. One-to-one video appointments will also be available for those who already have access to online services, as well as the support over the phone. Therefore, I believe that this level of support, combined with the duty in the Bill, is enough to ensure that the digitally excluded receive the support that they need.

Finally, I turn to the outstanding question from the noble Lord, Lord Pannick. I have been able to check while I have been on my feet. The position is that the legislation is not limited expressly to those claims. I am told that they are first in line to be used under these procedures. The noble Lord’s question went further and asked what was anticipated would be done after that. I will write to the noble Lord once I have an answer which I am satisfied is absolutely clear. I am concerned to make it very clear to the Committee that civil justice in particular is going to change. It has changed and it will change. For example, there does not seem to be any clear reason why a claim of £25,000 would be done online and not one of £26,000. One always has to have a limit but, once we accept that justice can be delivered online, the question then is what cases are suitable. I will write to the noble Lord on that.

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[Lord Falconer of Thoroton (Lab)]

The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.

In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.

I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.

[Lord Wolfson of Tredegar (Con)]

Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.

[Lord Falconer of Thoroton (Lab)]

What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?

[Lord Wolfson of Tredegar (Con)]

That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.

I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.

As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.

[Lord Pannick (CB)]

I am very grateful to the noble Lord. He correctly points out that there are occasions where there is no oral hearing and the judge so decides. Would he not accept, however, that there is a fundamental difference between that and a decision being taken, at the encouragement of the Master of the Rolls and certain others in the legal profession, to do away with oral hearings in categories of case because it is quicker and cheaper to do so?

The noble and learned Lord, Lord Falconer, has made the point but I join with him; it would be a matter of policy and of great significance were a decision to be taken by the Online Procedure Rule Committee that, for example, all civil claims for money are no longer to have oral hearings but to be determined on paper. There need to be some criteria for the exercise of these very broad powers that Parliament is conferring. There is no parliamentary approval of these new rules as I understand it, so it is a matter of enormous concern.

[Lord Wolfson of Tredegar (Con)]

With respect, of course I understand the point the noble Lord has made, and I will write to try to put a little more flesh on the bones. The last point he makes is in some ways perhaps the most important because I have seen two sides of this coin. The point the noble Lord has just made is that Parliament should have the final say on court procedures because, ultimately, it should not be for judges to decide whether you have a hearing; there should be a parliamentary override.

In a completely separate issue that I have been dealing with, child trust funds, I have sought to have a better procedure in the Court of Protection. It has been quite properly and very firmly pointed out to me that, ultimately, it is a matter for judges, not Ministers or even Parliament, to decide how the courts are run. This is a difficult topic. I take the point the noble Lord has made. I will write to him and the noble and learned Lord, Lord Falconer, and copy it generally to the Committee.

Amendment 38 agreed.

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[Baroness Chapman of Darlington (Lab)]

My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.

As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.

We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.

The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.

My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:

“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]


So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.

Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.

Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.

Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.

We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.

Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.

[Baroness Chakrabarti (Lab)]

Subject to the views of the Committee, that sounds eminently sensible. In case it is necessary, perhaps I might say that I support those amendments and would not want to deprive the right reverend Prelate of the opportunity to bring them back to the House at a later stage.

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[Lord Wolfson of Tredegar (Con)]

I was not seeking to take any procedural point. Rather than take time this afternoon, because we have not had a debate on the amendments, I will set out the position in writing and copy the letter appropriately.

Before taking the amendments in turn, perhaps I may make an important point which is central to this discussion, which is that coroners—

[Baroness Chapman of Darlington (Lab)]

I am sorry, I know that we are pushed for time and there are important matters that we want to get on to. I do not know about other noble Lords, but I would appreciate hearing the Government’s position on Amendments 50A and 50B. Is that possible?

[Lord Wolfson of Tredegar (Con)]

It certainly is. I had prepared to respond to the amendments and am happy to do so if the Committee finds that more helpful. I see some nodding heads, in which case I will do it that way instead. I will obviously direct the right reverend Prelate to Hansard. I am very grateful.

A central point which is really important is that coroners are judicial office holders—whether they go back to William the Conqueror is not directly relevant for these purposes, although it was interesting. That point is important: they are not administrators or decision-makers; they are judicial office holders. Ultimately, it is therefore up to the coroner, circumscribed by statute, how to conduct their investigations and inquests. I respectfully ask the Committee to bear that in mind when considering a number of these amendments, to which I will now turn.

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[Lord Thomas of Gresford (LD)]

The Minister has said we want coroners’ inquests to remain inquisitorial. In practice, they are adversarial. The ancient position of a coroner does not allow the proper adversarial safeguards to be in place. I would like the Government to rethink that position and consider whether it is appropriate at this time.

[Lord Wolfson of Tredegar (Con)]

I can accept two points there. I can accept that I and the Government will reconsider it. We certainly will think about it. This is a bit of a chestnut point, if I may say so; it has been discussed on a number of occasions. But the Government’s current position is that we want coroners’ inquests to be inquisitorial and not adversarial. Secondly, I accept, as a consequence of that, that we do not have adversarial safeguards. But that is consequent on the first point; the inquests are not adversarial.

There is a real problem, I would suggest, in changing the nature of a coroner’s inquest to being adversarial. I accept there will be particular inquests where it is appropriate for people to be legally represented. I do not want to mix the groups up, but we will discuss in the next group the issues of legal aid, exceptional case funding, et cetera. But the central fact is that the inquest is there to determine who the deceased is, where he died—I will say he—when he died and how he died, but not why he died. That is an important point.

[Baroness Chapman of Darlington (Lab)]

We are getting to the heart of it, in a sense, because the Government contend that these processes are not adversarial. I understand why they are doing that. However, I am increasingly of the impression that what the Minister has just said has absolutely no grounding in reality. The lived experience of extremely vulnerable people in this context reveals that the processes are deeply adversarial. Their experience does not align with what the Minister has just said. It is unfortunate that the Government do not seem able to appreciate this in their consideration of these amendments.

[Lord Wolfson of Tredegar (Con)]

Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—

[Lord Falconer of Thoroton (Lab)]

Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.

[Lord Wolfson of Tredegar (Con)]

The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.

This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.

To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.

Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.

As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.

Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—

[Baroness Chapman of Darlington (Lab)]

That is not the intention; it is that the hearing in its entirety should not be conducted by audio only. The amendment would not prevent someone participating by audio only.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that clarification, but the same point would apply. If the only people who are interested—I am using that word in the technical sense—in the inquest can participate only by audio link, the coroner would have to either not hold the inquest and adjourn it or hold it, so to speak, in a room, despite those interested people not being able to be there. I will consider again whether what the noble Baroness has said resolves my concerns, but I do not think that it does. Certainly, we are concerned to make sure that an inquest can still go ahead when, for some reason, everyone relevant can participate only by way of audio.

I assure the noble Lord, Lord Thomas of Gresford, that what underpins this and Parliament giving coroners these powers is concern for families. We want people to be able to participate, and we are conscious that some people may only be able to participate through technical means or audio only.

Amendment 45 seeks to ensure that remote inquest hearings and pre-inquest hearings are heard in a manner that is accessible to the public. In this regard, Clause 40 is designed to complement Clause 166 of the Police, Crime, Sentencing and Courts Bill, which is currently in the other place. Clause 166 provides for wider remote participation in court proceedings, under the direction of the court, and it covers a number of courts, including coroners’ courts. So, Clause 166 will ensure that justice remains accessible to the public, regardless of how the hearing is conducted. Again, the Chief Coroner will provide additional guidance on the use of remote hearings to ensure that coroners’ inquest hearings remain accessible to the public, as set out in Rule 11 of the Coroners (Inquests) Rules 2013.

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[Lord Beith (LD)]

It is not just human nature; it is the practical difficulty of registering deaths and making appointments in coroners’ offices, because registrars’ and coroners’ offices have very limited not just opening hours but opening days. This has been particularly marked during the pandemic.

[Lord Wolfson of Tredegar (Con)]

I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.

To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.

For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to every Member of the Committee who participated, in particular to the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton, for crystallising the fundamental inequality of arms that exists in so many inquests. Regardless of jurisprudence or terminology, that is how it is and how it feels for these families.

I am grateful, too, to my noble friend Lady Chapman of Darlington for making it crystal clear that evidence that cannot be challenged is going to be a huge problem, not least for compliance with Article 2, and for reminding us of the tragic case of Laura Booth, which is in the Inquest briefing in case noble Lords want to read it at leisure. There are other tragic cases of that kind, where, but for close scrutiny and the testing of evidence that initially seemed very straightforward, some real public interest problems, whether in our hospitals or elsewhere, would not have been revealed.

I am only slightly disappointed that the very busy right reverend Prelate disappointed my hope that it would be possible for a Lord spiritual to be in two places at the same time. None the less, I am very happy to take care of his amendments and ensure that he has the opportunity to bring them back next time. I think that is the right thing to do.

The Minister will forgive me, I hope, for being disappointed in the 100% defensive rebuttal of every single concern raised in this Committee. He reminds us that coroners are judicial officers and not mere administrators; of course, he is right about that. But he says that in total rebuttal of every safeguard and gentle constraint suggested—for example, the discretion to discontinue these vital investigations.

I cannot help but point out the contrast in the Government’s approach to this part and, for example, to Clauses 1 and 2. In Clause 1 we are told that it is perfectly acceptable for the legislature to constrain judicial thinking and discretion in quite convoluted ways, but here, when we want to put the needs and concerns of families into the equation, we are told that it is somehow an inappropriate constraint on the wonderful, inquisitorial, coronial province. We are reminded that coroners are inquisitorial and not adversarial, as if these terms of art are set not in aspic but in stone. I do not really care whether these are technically inquisitorial or adversarial—you can call them “Doris” as far as I am concerned. There are vital rights and interests being explored in this jurisdiction.

I am sorry to say that I do not know whether the government position is science fiction or space fantasy. In many cases these proceedings are tantamount to very difficult quasi-adversarial proceedings, but one side is silent. One side is silent because it does not have the language and resources to put its side of the picture. This is exacerbated in cases where very defensive public authorities, understandably, are heavily represented by Silks and so on. We cannot say that the full answer to that problem will be a technical, jurisprudential definition of inquisitorial versus adversarial proceedings. That is not reality at this moment in the 21st century.

I gently ask the Minister to consider meeting some representatives of the unrivalled NGO Inquest before Report. That organisation and those working within it have done so much work over the years with a number of bereaved families. I am sure they would at least help illuminate the Minister’s understanding of what some of these most difficult inquests are like for ordinary people. That would be my request to him. None the less, for the moment—but only for the moment, because having heard from my noble friend Lady Chapman and from the Liberal Democrats, I suspect that the Committee will want to return to this group on Report, and I obviously preserve the position for the spiritual Benches opposite—I beg leave to withdraw the amendment.

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Moved by

[Lord Wolfson of Tredegar]

46: After Clause 42, insert the following new Clause—
“Provision of information to registrar when investigation discontinued
In section 23 of the Births and Deaths Registration Act 1953 (furnishing of information by coroner in connection with registration of death), after subsection (3) insert—“(4) Where a senior coroner— (a) discontinues an investigation under section 4 of the 2009 Act,(b) authorises the disposal of the body, and(c) sends to the registrar, on request by the registrar, a certificate stating any particulars required by this Act to be registered concerning the death (so far as they have been ascertained at the date of the certificate),the registrar shall in the prescribed form and manner register the death and those particulars, so far as they are not already registered.”Member’s explanatory statement
This new Clause enables a coroner who has discontinued an investigation into a death without holding an inquest to supply information needed for the death to be registered.

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[Lord Hacking (Lab)]

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

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

[Lord Wolfson of Tredegar (Con)]

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

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

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

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

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

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

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

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

[Lord Hacking (Lab)]

Bravo, bravo!

[Lord Wolfson of Tredegar (Con)]

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

[Baroness Chapman of Darlington (Lab)]

Clearly, we will not push the amendments to a vote today. It is pleasing to hear the Minister recognise the problems that we are raising, so at least we have got somewhere. Too often, Ministers say, “Well this isn’t a problem; we don’t need to fix it”. I do not think that is what the Government are saying. I am pleased that the Minister has agreed to meet Inquest; that will be very helpful. We obviously reserve our right to come back to this matter at future stages.

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[Baroness Chapman of Darlington (Lab)]

Similarly, I indicate our hope that the Government will bring something forward. Should that not be the case, we will happily play our part in doing whatever we must to move this on.

[Lord Wolfson of Tredegar (Con)]

My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.

I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.

As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.

There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.

Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.

[Lord Etherton (CB)]

I think there is nothing more to say. I am very grateful to the Minister for those indications, and on that basis, I beg leave to withdraw the amendment.

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Moved by

[Lord Wolfson of Tredegar]

52: Clause 48, page 58, line 15, at end insert “, except section (Provision of information to registrar when investigation discontinued)”
Member’s explanatory statement
This amendment provides for the new Clause after Clause 42 in the name of Lord Wolfson of Tredegar to be brought into force by regulations.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar 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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[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.

[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 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.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I beg leave to withdraw Amendment 7.

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Moved by

[Lord Wolfson of Tredegar]

16: Clause 13, page 34, line 24, leave out “by section 224(1A)(b)” and insert “in respect of the offence by section 224(1)”
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).

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Moved by

[Lord Wolfson of Tredegar]

19: Clause 39, page 53, line 27, leave out “follows” and insert “set out in subsections (2) and (3)”
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am sorry but one of the problems of doing this online is that, when the system freezes, you do not have any notes.

[Lord Cormack (Con)]

Put not your trust in tablets.

[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.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.

As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.

For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.

Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.

Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.

Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.

Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.

All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.

Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.

I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.

The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.

For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.

I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.

As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.

I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.

I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.

Amendment 19 agreed.

Moved by

[Lord Wolfson of Tredegar]

20: Clause 39, page 53, line 33, at end insert—
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.

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[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.

[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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Moved by

[Lord Wolfson of Tredegar]

29: After Clause 47, insert the following new Clause—
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.

There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.

In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.

There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.

[Lord Etherton (CB)]

My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.

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[Lord Hacking (Lab)]

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

[Lord Wolfson of Tredegar]

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

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

Amendment 29 agreed.

Clause 49: Extent

Amendments 30 and 31

Moved by

[Lord Wolfson of Tredegar]

30: Clause 49, page 58, line 24, leave out “and” and insert “to”
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.

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Moved by

[Lord Wolfson of Tredegar]

32: Clause 50, page 59, line 3, at end insert—
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

38: Clause 50, page 59, line 21, at end insert—
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.

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Moved by

[Lord Wolfson of Tredegar]

39: Schedule 2, page 76, line 4, at end insert—
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Wednesday 6th April 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

Clause 49, page 60, line 8, leave out “passed without” and insert “the Bill for which would not require”
Member’s explanatory statement
This amendment adjusts terminology relating to devolution in Northern Ireland.

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

My Lords, there is one minor and technical amendment in my name to Clause 49, which inserts a new clause to allow pro bono cost orders in tribunals. Specifically, the amendment is to the wording of the devolution carve-out, which ensures the clause applies only to tribunal proceedings that are reserved in Scotland and Northern Ireland. I have made this amendment following discussions between the Office of the Parliamentary Counsel and its equivalent in Northern Ireland, as the Northern Ireland equivalent felt the new words more accurately reflected the wording of its devolution settlement. However, the amendment has no impact on either the policy of the clause or how the clause will work in practice. I beg to move the amendment in my name.

[Lord Foulkes of Cumnock (Lab Co-op)]

I wonder why this was not picked up earlier. Does it reflect within Whitehall a lack of understanding of devolution and its impact yet again?

[Lord Wolfson of Tredegar (Con)]

My Lords, no; it reflects the extremely high standards of parliamentary counsel. If we had not picked this up, nobody else would have done, but we felt it was the right thing to do.

Amendment agreed.

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Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[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.