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.

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[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).

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[Lord Ponsonby of Shulbrede (Lab)]

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

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

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

[Lord Wolfson of Tredegar (Con)]

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

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

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

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

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

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[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?

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Rosser (Lab)]

As has been said, this part of the Bill provides for “interpretation” of the refugee convention. It includes some entirely new provisions and replicates or amends some existing provisions.

On existing provisions, this part of the Bill repeals the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. These regulations transposed a key EU directive on standards for asylum systems, the qualification directive, into UK law. The Bill repeals the regulations and puts versions of the provisions into primary legislation instead.

The UNHCR noted with concern the Government’s approach to interpreting the refugee convention. I will read an extract from its legal observations on the Bill in full. It said:

“We note with concern the Government’s approach to interpreting the Refugee Convention. Any treaty must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ In the case of the Refugee Convention, as the UK Supreme Court has noted on more than one occasion, ‘There is no doubt that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.’ In addition, the Vienna Convention specified a range of sources that ‘shall be taken into account’ in interpreting a treaty; these all reflect the agreement of the parties, and include other agreements and instruments from the time the treaty was concluded, as well subsequent agreements, State practice and international law. In other words, States cannot, under international law, unilaterally announce their own interpretation of the terms of the agreements they have made with other States. This, too, has been repeatedly recognised by the House of Lords and the Supreme Court of the UK.”


I do not want to repeat what has already been said, but I just ask: do the Government agree with that extract from the UNHCR’s legal observations on the Bill? If they do agree with it, do they believe that they are still abiding by it?

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

My Lords, I am grateful to all noble Lords who have taken part in this debate.

The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system.

The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts.

A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later.

With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations.

I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.

[Baroness Jones of Moulsecoomb (GP)]

I am sorry, I missed my moment; I should have spoken as soon as the Minister spoke to me. I did not accuse him of trying to appease the far right. I hope I did not say that—I certainly did not mean to—but I do accuse the Government of it. I know that the Minister did not write this Bill, but that is something I see the Government as guilty of.

[Lord Wolfson of Tredegar (Con)]

I did not take it personally. I agree that I did not write the Bill. It would be a far worse Bill, and the noble Baroness would like it even less, if I had written it. But I replied in that way because I take the view that if I am standing here defending government policy, then I will stand here and defend government policy. I certainly would not defend a government policy which was simply appeasing the far right. So, that is why I replied in those terms. I know that the noble Baroness was not making a personal attack; I did not take it that way.

To finish my point to the noble Lord, Lord Alton—

[Lord Green of Deddington (CB)]

My Lords, can we have a little less talk about the far right? Some 70% of the population think that the present Government’s policy on asylum is a failure.

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not want to get into the question of whether the Bill is going too far or not far enough, and whether our policy is good, bad or indifferent, on this group of amendments. If I may say so, those are Second Reading-type questions. I was simply responding to the point put by the noble Baroness.

To return to the point on Turkey, whether its acts are in accordance with the refugee convention is really a separate issue. I do not mean to diminish or demean this, but what we are talking about here are not acts, so to speak. We are talking about the fundamental question of whether it is proper—because the charge put against me is that it is not—for this Parliament to set out its interpretation, the UK’s interpretation, of the international obligations we have under the refugee convention.

[Lord Alton of Liverpool (CB)]

Before the Minister leaves that point, I was not specifically asking him to respond to Turkey’s actions. I was saying that it diminishes our ability to speak to countries such as Turkey or China—which I also referenced—if we are ourselves een to diminish our responsibilities under the 1951 convention. That comes to the question that the noble Lord, Lord Rosser, put about how this is seen beyond our shores by international institutions that have examined what we are trying to do. I hope the Minister will address that point as we proceed.

[Lord Wolfson of Tredegar (Con)]

I was going to come to the point made by the noble Lord, Lord Rosser. Let me just say a sentence about it now: the UNHCR is not the interpretive body of the refugee convention. Each state under the convention is there to interpret its obligations, in accordance with the Vienna convention. That is the system which the state parties have set up. When we have a phrase—we will get to one a little later—such as “serious non-political crime”, the state parties have to interpret it. We will get to an example in the next group—this is a little cliffhanger—of where different countries have approached the question differently. There is nothing wrong with that, provided that they are all acting in accordance with the Vienna convention in good faith in seeking to interpret their obligations.

Respectfully, I think that the noble Lord, Lord Anderson of Ipswich, essentially accepted that basic proposition under the Vienna convention, and he was obviously right to do so. He sought characteristically carefully—if I might say so—to seek disclosure of the legal advice on which the Government are relying, while recognising the conventions which apply to that. I listened carefully to what he said. I will read Hansard to see whether there is anything more I can say in writing to him; I do not want to rush from the Dispatch Box. There may or may not be anything more I can say, but I will read that point carefully. I think he recognised that there are conventions in this area which do apply.

However, I say to the noble Lord, Lord Paddick, that it is not a question of having to agree with all the other signatories. This is not about amending the refugee convention; it is about interpreting it. That is a very different thing. If you want to amend a contract, you need the other party’s agreement, but interpreting a convention is for each state party.

I will say a few words about the substantive clauses, although I think it is fair to say that those were not really the Committee’s focus. Clause 29 sets out how key terms which are defined in the following clauses will be applied; they are the key components of the refugee convention. Clause 29 also revokes the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. Those are the regulations through which we transposed our obligations under the EU qualification directive 2004. Because we are out of the EU, we need to do that in a different way.

However, we will continue to grant humanitarian protection to eligible individuals who cannot be removed from the UK to their country of origin if their removal would breach the UK’s obligations under Articles 2 or 3 of the ECHR. It is important to clarify—I am sure Members of the Committee know this—that these are not individuals protected under the refugee convention. However, we will make further changes to align the entitlements of permission to stay granted on the basis of humanitarian protection to that provided to group 2 refugees.

In response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we believe that Clause 33 provides a system of effective protection from persecution. Clause 34 deals with relocation, but I do not think any noble Lords spoke to it directly, so I will just refer to it and move on.

On Clause 35, of course we have a proud history of providing protection to those who need it, but that should not apply to those who commit serious crimes, putting the communities that host them at risk and endangering national security. We believe we are right to define and legislate in this area. I say to the noble Baroness, Lady Hamwee, that that is a good example of serious non-political crime. That is a phrase in the refugee convention, but it is not further defined in it. Each state has to look at it and define it, in accordance—always—with the Vienna convention.

[Baroness Ludford (LD)]

The Minister keeps saying that each state will define the refugee convention, and he alluded to the EU qualification directive; there is also the procedures directive. I declare an interest, as I worked on both directives as an MEP. Of course, that was an attempt not for each state in the EU to do its own thing but to have a collective set of laws which interpreted the refugee convention in detail and, as far as I know, complied with it. That prevented each country doing its own thing in a potentially destructive way.

[Baroness Hamwee (LD)]

I have an associated point, to save the Minister bobbing up and down too much. I entirely take the point about non-political crime. I just wanted to make it clear that I was referring only to that bit of the Bill when I mentioned the case. I was not suggesting that it was the prompt for the whole of this part. But can the Minister explain more about the impact of our leaving the EU? Does that give us a legal opportunity, or is this happening because it is a convenient political point in the calendar, as it were?

[Lord Wolfson of Tredegar (Con)]

On the first point, of course the EU sought to interpret the refugee convention for all its members. But that actually makes my point, because it is only for the members of the EU. All the other states will interpret it in their own way. If you want to hand over your interpreting power to the EU, that is fine if you are a member—but I suggest that that does not cut across my basic point.

As to the effect of leaving the EU, if we have hitherto signed up to various interpretations through EU regulations, we now have an opportunity to look at the matter afresh, as I said when I began. To go further into that point would go way beyond the scope of this group.

Finally, I come back to the question put to me by the noble Baroness, Lady Chakrabarti, about “scrapping” —I think that was the word she used last night as well—the Human Rights Act. I said last night, and I will give the same answer now, that the Human Rights Act brings into English domestic law the European Convention on Human Rights. We have reaffirmed— I did it yesterday; I will do it again now—that this Government will stay in as a signatory to the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, but will he answer my question a bit more specifically? Has he instructed parliamentary counsel to begin the drafting process for the Bill that will replace, repeal or reinterpret the Human Rights Act and/or the convention on human rights?

[Lord Wolfson of Tredegar (Con)]

As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—

[Lord Anderson of Ipswich (CB)]

I was going to wait until the Minister had finished his sentence but, before he sits down, I revert to the question of the Government’s legal case. The Minister is reticent to disclose government legal advice, which I entirely understand but, before the Committee and others can reach a fully formed opinion on this, they need a worked version of the Government’s legal position. It may be that that takes the form of a position paper or submission, rather than the replication of advice already given. But, until we see in detail what Raza Husain and the UNHCR got wrong, and why these interpretations are fully consistent with the Vienna and refugee conventions, the evidence is all one way. I am sure that I speak for many other noble Lords when I say that I would be very much assisted by seeing something of that nature.

[Lord Wolfson of Tredegar (Con)]

I hope the noble Lord does not take it amiss if I say, with respect, that he makes the same point as he made earlier. and I understood it. I need to be very careful that I do not get inadvertently drawn into disclosing legal advice, but I hear the point from the noble Lord that he and others would like to see a greater fleshing out of the Government’s legal position. I have said that I will see what I can do to assist in that.

[Lord Brown of Eaton-under-Heywood (CB)]

Very diffidently, am I entirely wrong in thinking that, under Article 35 of the convention, some heed is required to be paid to the UNHCR’s expression of its approach to the convention? My recollection is that Lord Bingham said as much in one of the cases I mentioned last week, Asfaw. Is that not right?

[Lord Wolfson of Tredegar (Con)]

Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made.

I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.

[Lord Rosser (Lab)]

Before the noble Lord sits down, I was wondering whether he would explain some of the changes that are being made or cover them in a subsequent letter. As I understand it, Clause 33 replaces Regulation 4 in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which is repealed by Clause 29. The wording is largely the same but, as I understand it—and I may be wrong—the existing regulations reference

“protection from persecution or serious harm”,

whereas Clause 33 references only “protection from persecution”. Why has that change to the language been made and what will its practical effects be?

There are changes of language in other areas, such as from a “may” to a “must” in Clause 34. What problem is that intended to solve? Is it not the Government’s intention to explain the reasons for the changes they have made where they have made them?

[Lord Wolfson of Tredegar (Con)]

The “may” and “must” point, to which the noble Lord referred, will come up in a later group because, from memory, there is a specific amendment on it. I was proposing to deal with that when I respond to that amendment. I think we are going to come to the persecution and serious harm point later but, if I am wrong, I will write to the noble Lord and explain it. However, we are coming to “may” and “must” on a later group.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not sure whether it is the time of the evening that prompted that reference to dinner; otherwise, it is not immediately apparent to me what the relevance of it was. I will come back to that rather less substantive point—if I may say so, respectfully—at the end.

Let me deal first with Clause 31. I am grateful to the noble Lord, Lord Dubs. He is right that there are points of principle that underlie these amendments; they underlay the last group as well. I too will try not to repeat the points that I have made. There are points of principle that are at issue between us, and we have set out our respective positions. We believe that the test set out in Clause 31 is compliant with our international obligations. More specifically, we believe that it will provide, and lead to, better decision-making, because it sets out a clear test, with steps for decision-makers, including the courts, to follow. That will lead to greater consistency.

Turning to Amendments 103 and 104, although I listened very carefully to the noble Lord, Lord Dubs, and I agree with the importance of us carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the convention, we do not agree with these amendments because, taken together, they will essentially maintain the current standard of proof system. In so far as my noble friend Lady McIntosh of Pickering said that it was, to a certain extent, a probing amendment, let me try to explain.

First, this is not about setting aside decisions of the court. The courts are there to interpret the legislation as it stands—that is what they do. Parliament is entitled to change the legislative background, in so far as it is consistent with our treaty obligations. Clause 31 sets out a clear, step-by-step process. I hear the point made by the noble and right reverend Lord, Lord Sentamu, that it should be—so far as legislation can be—in simple language and a clear test. The problem at the moment is that there is no clearly outlined test as such. There is case law, there is policy and there is guidance in this area, but the current approach leads to a number of different elements being considered as part of one overall decision. What we seek to do here is to introduce distinct stages that a decision-maker must go through, with clearly articulated standards of proof for each. We believe that this will lead to better and more consistent decision-making.

At its core, in Clause 31(2) we are asking claimants to establish that they are who they say they are and that they fear what they say they fear to a balance of probabilities standard. That is the ordinary civil standard of proof for establishing facts, and those are facts in Clause 31(2); namely, more likely than not. It is reasonable, I suggest, that claimants who are asking the UK for protection are able to answer those questions. We have looked carefully, of course, at the often difficult situations that claimants might come from and the impact that might have on the kinds of evidence that they can provide. However, we consider that our overall approach to making decisions, which includes a detailed and sensitive approach to interviewing, allows all genuine claimants an opportunity to explain their story and satisfy the test.

There is international precedent that supports our decision to raise the threshold for assessing the facts that a claimant presents to us to the balance of probabilities standard. Both Canada and Switzerland—highly respected democratic countries, dare I say it—have systems which examine at least some elements of a claimant’s claim to this higher standard. Respectfully and rhetorically, let me ask this of the noble Baronesses, Lady Ludford and Lady Bennett of Manor Castle. The noble Baroness, Lady Ludford, said that this was confusing and complex. The noble Baroness, Lady Bennett of Manor Castle, said that she had horror at it. The higher standard is used in Switzerland. Does the horror extend to Canada and Switzerland as well? There is nothing wrong in principle with adopting the higher test for some parts—I will come to it in more detail—of the decision-making tree.

[Baroness Ludford (LD)]

Does the Minister recall that I did not just say that it is about the higher standard? It is about having different limbs and different requirements under those different limbs, and switching from “reasonable likelihood” to “balance of probabilities” as part of the composite test, which is not holistic but is in different parts. That is what is confusing, not just a change in the standard of proof.

[Lord Wolfson of Tredegar (Con)]

My Lords, with the greatest respect, it is not confusing at all, because Clause 31(2) establishes the facts, and that is all a balance of probabilities. Then, in Clause 31(4), the decision-maker turns to questions of the future. It is at that stage that the reasonable likelihood test is the appropriate test, because the decision-maker is looking to assess what might happen in the future. That is why we have a lower test at that stage. It is quite usual in law to have different stages of a test and different levels of probability at each.

[Lord Kerr of Kinlochard (CB)]

Could the Minister answer the question of the noble Lord, Lord Rosser? What is the problem that we are trying to solve here? Who is pressing for this change? The Law Societies have advised against it. It seems to me that the only purpose it serves is to make the task of determining whether the fear exists and is well-founded more complicated and more likely to result in the answer, “No, let’s send him back.” That seems to be what is driving this. I remind him that, in late July and early August, Hazaras from Afghanistan—asylum seekers here—were still receiving letters of rejection, telling them that they were not at risk if they were sent back to Kabul.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the question. What is driving it, as I said a few moments ago, is the attempt to have a consistent and clear approach to decision-making. When you have a single test with different elements, and it is all under “a reasonable likelihood”, it is then that you are more likely to have inconsistent decision-making—I will not use the word “mishmash”. What you are doing here is really two things, and Clause 31 sets them out clearly. You are first saying, “Are you who you say you are?” and “Did you, in fact, fear such persecution?” Those are factual questions, decided on the balance of probabilities. Then the question is: “Is there a reasonable likelihood that, if you were returned, you would be persecuted?” That is a question of reasonable likelihood.

[Baroness McIntosh of Pickering (Con)]

My noble friend is, in fact, rewriting the law. I am not an immigration lawyer, but if I were, I think I would be a little confused at the moment. In the case that was decided in 2021, Kaderli v Chief Public Prosecutors Office of Gebze in Turkey, it was clearly said that

“The true test involved the application of a lower standard”


than the balance of probabilities. So now no immigration lawyer could plead the application of the lower standard because my noble friend is raising the bar in this Bill.

[Lord Wolfson of Tredegar (Con)]

I thought I made it absolutely clear when I said earlier that the court in that case made its decision against the legislative background at the time. Parliament is entitled to change the legislative background. We will want to make sure that we remain consistent with the refugee convention, and, as I said earlier, we believe that we are. There is nothing wrong with doing that. It is simply not the case that we are somehow bound as a Parliament by what the Court of Appeal said in the case referred to by my noble friend. Therefore, with great respect, I disagree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, where he said that a single holistic question was better and that the higher standard was objectionable. With respect, I disagree on both points.

[Lord Brown of Eaton-under-Heywood (CB)]

Does the Minister agree that, if, under this clause in future, somebody were to fail—they could prove only 45% of the relevant limb of the clause—they nevertheless could not be refouled? Certainly, under Article 3 of the ECHR the test is “reasonable likelihood” and not “balance of probabilities”.

[Lord Wolfson of Tredegar (Con)]

With respect, refoulement is a separate issue and, with greater respect, I will deal with it separately. What we are establishing here is what you need to do to establish your “well-founded fear”. If you cannot establish, on the balance of probabilities, that you are who you say you are, then yes, under this test, you will not satisfy Clause 31(2)(a).

I will now turn to Clause 32, because otherwise I will start to repeat myself. Article 1(A)(2) of the refugee convention states that a refugee is an individual who has a

“well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”,

and Clause 32 lays out precisely what is meant by each of those characteristics, which are sometimes called “convention reasons”. Again, the purpose here is to make sure that all decision-makers, including both the Home Office and the courts, understand and operate to the same definitions. That is, I suggest, a desirable law reform.

On Amendment 105, there is a mismatch between how the concept of a “particular social group” is defined in current legislation, government policy and some tribunal judgments, and also in how the definition has been interpreted by some courts. There is no authoritative or universally agreed definition of “particular social group” among state parties to the convention and, in particular, there is no universal agreement as to whether the test set out in Article 1(A)(2) of the refugee convention should be applied cumulatively. The UNHCR has issued guidance supporting the view that the cumulative approach is a misapplication of the refugee convention, but, as I said in the last group, that guidance is neither legally binding nor determinative as a matter of international law.

Article 1(A)(2) of the convention does not elaborate on what is meant by

“membership of a particular social group”;

there is no supranational body with authority to give a determinative ruling and, therefore, each state party, including the UK, has to interpret it. We believe that the definition in Clause 32 captures what is meant in the convention by a “particular social group”. We have looked at the broad wording in the convention, the travaux préparatoires—excuse my French—the approach of a number of other jurisdictions, and Article 31 of the Vienna convention, and we believe that setting it out in this way will make it clearer.

The amendment would mean that you would have to satisfy only one of the conditions to be considered a member of a “particular social group”, and that would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors that could perhaps be changed, such as an individual’s occupation. That is the first point. The second is that our proposed definition accords with the widely used and accepted interpretation of the “particular social group” concept, as the noble Baroness, Lady Lister, noted. It is an EU interpretation; it comes from the approach in the EU qualification directive, which underpins the Common European Asylum System. We are very happy to look at EU interpretations; we do not have a closed mind—when they get it right, they get it right, and being independent means that we can look more broadly. However, with great respect, it is difficult to attack this as something utterly wrong if, in fact, this is the interpretation in that legislation.

[Baroness Lister of Burtersett (Lab)]

I am not a lawyer, so I rise with some trepidation, but it seems to me that it suits the Government’s purpose to interpret it in this way, because it means that fewer vulnerable groups—particularly women—fleeing violence will receive refugee protection as a result. It is no clearer than the interpretation that it is overruling, and it seems odd. It is quite rare for the Government to pray in aid an EU interpretation over that of their own courts. Maybe one of the lawyers opposite will be able to give a better response than I can, but I am afraid I am not convinced, because it seems as though that is why this is being done—it is nothing to do with clarity. If this legislation had clearly put in law Lord Bingham’s interpretation, that would be clear. So why the EU interpretation, which is, as numbers of authorities have said, likely to mean fewer vulnerable people—particularly women—receiving the refugee protection to which they are entitled under the convention?

[Lord Wolfson of Tredegar (Con)]

My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration.

I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause.

Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable.

We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger.

I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.

[Lord Rosser (Lab)]

That may be the case, but all I asked of the Minister was to tell the Committee who has been making representations for these changes.

[Lord Wolfson of Tredegar (Con)]

I have not been here as long as the noble Lord, Lord Rosser, but, with respect, I do not think it fair to ask me that question as I stand here. The Government receive representations on this issue all the time. One might say that we receive representations from millions and millions of people who voted for this Government at the last election when immigration reform was full square in our manifesto. I say with great respect to noble Lord, Lord Rosser, that we are having a very interesting debate on some important legal points. If he wants to make political points, I am happy to respond in a political context.

[Lord Rosser (Lab)]

Since when has it been making a political point to ask where the pressure has come from to make these changes? Since when has that been a political point?

[Lord Wolfson of Tredegar (Con)]

The pressure has come from the people of the United Kingdom, who elected this Government with an overwhelming majority.

[Lord Berkeley of Knighton (CB)]

In that case, will the Minister accept that, in a way, and given what we have heard from other noble Lords, particularly my noble and learned friend Lord Brown, it is part of the Government’s strategy to toughen up on migration and immigration? That is really what this is about.

[Lord Wolfson of Tredegar (Con)]

Absolutely, we want to toughen up on illegal migration. We want to make sure that people who have a right to come in are able to do so, and to make sure that people who do not have that right cannot come in. We want consistent and better decision-making. It is really as simple as that.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. In a previous group, the noble Baroness the Minister—I was very grateful to her—sought to make distinctions between immigration and asylum protection; I think that was quite important. To be now almost resiling from that and suggesting, in answer to a previous intervention, that we are going to reinterpret the refugee convention—to respond to the millions of people who voted for Mr Johnson’s Government on the basis of controlling immigration—is a little troubling. I do not think I am alone in the Committee in being so troubled.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.

[Baroness Lister of Burtersett (Lab)]

I am sorry to keep bobbing up, and I appreciate what the Minister said about monitoring the equality impact of this legislation, but does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be so accepted? I do not believe that that is what the British people voted for.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not trying to be difficult here. What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK. That is what we are seeking to do. By having a clearer set of definitions, we are trying to make sure that it will not depend on the happenstance of who the decision-maker is and the way the test is applied.

[Lord Paddick (LD)]

I do not wish to prolong the Minister’s agony but can he clarify something for me? I think he said that, in the face of court judgments, the Government were entitled to change the legislative background. Does changing the legislative background mean that the Government are raising the standard of proof, thereby making it more difficult for claims for asylum to be accepted—this is in Clause 31—and in so doing, overturning the judgments of the UK’s highest courts? That is the first question.

The second question relates to Clause 37. The Minister says that “particularly serious crime” is not defined in the refugee convention and that it is up to each country to define what it means. My understanding is that the definition is being changed from two years’ imprisonment to 12 months. So, particularly serious crime was defined by this country as entailing two years’ imprisonment and now the Government are changing it to 12 months. That is not about seeking to define or a lack of clarity but a deliberate change. Why is that?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

On the first point, the position at the moment is that you have a reasonable likelihood test; what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called the holistic test. What is going on here—and what should be going on—is that we have sought to identify a number of discrete questions and we have applied the appropriate standard of proof to each of them. On the second point, the noble Lord is absolutely right in that a serious crime was defined as one that meant 24 months’ imprisonment and we are now defining it as 12 months. We believe that that is appropriate and remains consistent with our refugee convention obligations.

I am not sure whether I should formally have said that I invite the noble Lord to withdraw the amendment.

[Lord Dubs (Lab)]

I thought we were going to have more Q&A. I am grateful to the Minister for his fairly clear explanation of why the Government are doing what they are doing. I am not totally satisfied that we have heard the full reason. Over the years, we have not had any arguments put to us that the 1951 convention was not working; the arguments have been elsewhere. Suddenly, we are given these different considerations for why we should pass this. However, we will be back on Report, having listened to what the Minister has said. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin with Amendment 107, tabled by the noble and learned Lord, Lord Etherton, whose analysis I listened to very carefully. It seeks to reflect the position in the Adimi case by defining the requirement to “come direct” to include having passed through intermediate countries on the refugee’s way to the UK. I assure the noble and learned Lord that this is something we have carefully considered. Where, for example, a person has taken a connecting flight to the UK, due regard will be paid to the individual’s circumstances in determining whether they came direct. The powers in the Bill enable us to exercise that flexibility, which will be reflected in guidance provided to the caseworkers and decision-makers.

It follows that if a refugee cites a particular protected characteristic as a reason for being unable to comply with the standards set out in the Bill, including to come direct, that will be carefully considered by caseworkers in determining the entitlements attached to their leave. As I said on earlier groups, we will be sensitive to those cases. Flexible powers in the Bill allow it, and that will be set out in guidance in any event.

I will come back to Amendment 106 in a moment, but Amendment 108 links closely with Amendment 107 and seeks to ensure that determination of both “reasonably expected” and “reasonably practicable”, which are relevant standards in determining “come direct” and “without delay” respectively, are interpreted with due regard to protected characteristics. Essentially, this point is answered by the point that I have just made: the Bill has flexibility built into it to take individual circumstances into account. A person may be deemed to have come direct if they could not have been reasonably expected to claim asylum in a first safe country. Similarly, they will be deemed to have claimed asylum without delay if it occurred as soon as was “reasonably practicable”. Therefore, if a refugee cites a particular protected characteristic as a reason for being unable to comply with the standards in the Bill, that will be considered by the caseworker. The Bill is perfectly flexible enough to enable us to do so.

Turning to Amendments 106, 109 and 110, we again tread over the ground of interpreting obligations under the convention. I recognise the importance of taking a sensitive approach to how “come direct” is interpreted and I have already talked about the example of a connecting flight. However, I cannot accept that the definition should be amended as proposed, to enable a refugee to have been in another country “for a substantial period” and still be determined to have come directly. Those in need of protection must claim in the first safe country that they reach, because that is the fastest route to safety. That is an internationally recognised concept. It underpins, for example, the Common European Asylum System, and there are safeguards in the current provision in Clause 36(1). Even if a person stopped in another country outside the UK, they could still say that they came direct to the UK if they can show that they could not reasonably have been expected to seek protection under the refugee convention—for example, because they were under the control of traffickers—although every case would have to be considered on its own merits. Therefore, with respect, and without opening up the wider issue, there are some good underlying points in what we heard from my noble friend Lord Hodgson of Astley Abbotts.

Amendment 109 requires a little unpacking. I should be clear that differentiation does not constitute a penalty for the purposes of Article 31. However, I disagree with the analysis that protection under Article 31 of the convention should extend to those who have tried to exit the UK without first seeking asylum, because we must interpret the “first safe country” principle consistently. Therefore, the defence under Section 31 of the Immigration and Asylum Act 1999 should no longer be available to those who transit out of the UK.

Finally, turning to Clause 36, the refugee convention is clear that refugees should be protected from penalties for their illegal entry or illegal presence when they have come directly from a territory where their life or freedom was threatened, they presented themselves without delay to the authorities, and they showed good cause for their illegal entry or presence. This will now be familiar ground. However, the refugee convention does not define what is meant by the terms

“coming directly from a territory where their life or freedom was threatened”

or

“present themselves without delay to the authorities”.

This clause sets out how these phrases should be interpreted in the UK. This is the same point that I made in the previous two groups.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, asked me whether we were overturning the judgments in Adimi and Asfaw and, if so, why? I hope I have that question down fairly. With the greatest respect, the courts in Adimi and Asfaw interpreted “come directly” in Article 31(1) more generously than the original intention of Parliament. The Explanatory Note to Section 31 of the Immigration and Asylum Act 1999 says:

“This defence, which is modelled on Article 31(1) of the Refugee Convention, does not apply if the refugee stopped in a third country outside the United Kingdom unless he can show that he could not reasonably have been expected to be given protection under the Convention in that country.”


What we are doing here is consistent with the refugee convention. There is sufficient flexibility in the proposed powers and the overall policy to enable an individual to demonstrate that during the stopover they could not reasonably have been expected to seek protection under the refugee convention or, where appropriate, to show good cause for their illegal entry or presence.

Turning finally to the point put to me by the noble Lord, Lord Paddick, who said that someone arriving by aeroplane would be arriving illegally, some joys await us in group 8, when we will come to this point. As a taster before the short dinner break, I point out that there is a statutory defence recourse under Section 31 of the 1999 Act if they are genuine refugees and used fraud or deception to get a forged or false entry clearance. We will no doubt come back to this in more detail in group 8.

[Lord Paddick (LD)]

If every country interpreted Article 31 as the Government want it interpreted by means of the Bill, what would be the consequences for dealing with the refugee crisis that the world faces?

[Lord Wolfson of Tredegar (Con)]

I really do not mean to be flippant. The consequence would be that every country would be interpreting the refugee convention in accordance with its terms. As a country, we are interpreting our legal obligations in the way that we ought to and are allowed to. We are going back—

[Lord Sentamu (CB)]

The Joint Committee on Human Rights recommended that this be amended. There must be good reasons for explaining why the Government do not want it amended and I have not heard them.

This is a true story; I can meet the Minister in camera and show him the evidence. A young man aged 17, whom we found in Kenya—

[Lord Sentamu (CB)]

I am giving an example of why Article 31, without the amendment, does not work.

[Lord Wolfson of Tredegar (Con)]

I am almost as new, I think, as the noble and right reverend Lord, but my understanding of procedure is that that is meant to be for questions. If the noble and right reverend Lord will write to me or meet me to discuss that particular case, I will certainly discuss it with him. If the case raises a point of principle, I will deal with it. If it raises a point of principle that I think will be helpful for the Committee to hear, I will write to him and provide a copy of the letter. I hope that is helpful for this evening.

[Lord Paddick (LD)]

My Lords, may I just say that this is Committee? This is not Report. Any noble Lord is entitled to speak after the Minister in Committee.

[Lord Wolfson of Tredegar (Con)]

My Lords, I really do not want to get into a procedural battle. I was trying to be both helpful to the Committee, given the time and pressure, and respectful, I hope, to the noble and right reverend Lord. I reiterate the offer, which I think is appropriate.

[Lord Kerr of Kinlochard (CB)]

Could the Minister answer the question from the noble Lord, Lord Paddick? It was rather a flippant answer that he gave—that everybody would be interpreting the convention according to their rights. I think the noble Lord, Lord Paddick, meant: what would be the practical effect? What would happen to the 26 million refugees in the world, three-quarters of whom are in countries contiguous to the one in which they had their citizenship? Would all countries agree, if they introduced this “first safe country” rule, that all refugees had to stay in these contiguous countries—in these encampments in Jordan, Syria, Turkey and so on—and that nobody could move on, under the refugee convention, to another country?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am certainly not trying to be flippant. What I am saying is that we have a refugee convention that sets out our international obligations. We are abiding by those international obligations. It may—I underline “may”—be that a convention entered into in 1951 is not absolutely suitable for the world of 2022. That might be the answer. At the moment, however, my focus as a Justice Minister is on making sure that this country abides by its international obligations, and that is what we are doing. I invite the noble Baroness to withdraw the amendment.

[Baroness Ludford (LD)]

My answer to that last point is that if that is what the UK Government feel, they should convene a conference to renegotiate the refugee convention, but they are not doing that. A large number of noble Lords in this Committee believe that the Government are riding roughshod over the refugee convention in a way that demeans this country and sets an extremely poor example, not least to those countries on the front line, which are taking the overwhelming majority of people seeking protection. We have bandied around the statistics in the last few days in Committee, but we are not in the top category of countries in terms of the numbers, which are manageable. They would be particularly manageable if the Home Office got its act together in the way it decides asylum cases initially—if it invested in the initial consideration of the claims and did not make the law ever more complex, with ever more delays and ever more prospects of litigation. It seems we are banging our heads against a brick wall somewhat, but I beg leave to withdraw my amendment.

Judicial Review and Courts Bill

Lord Wolfson of Tredegar Excerpts

Monday 7th February 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That it be an instruction to the Committee of the Whole House to which the Judicial Review and Courts Bill has been committed that they consider the bill in the following order:

Clauses 1 to 16, Schedule 1, Clauses 17 and 18, Schedule 2, Clause 19, Schedule 3, Clauses 20 to 30, Schedule 4, Clauses 31 to 33, Schedule 5, Clauses 34 to 49, Title.

Motion agreed.

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.

Criminal Justice: Royal Commission

Lord Wolfson of Tredegar Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what progress they have made with the establishment of the Royal Commission on the Criminal Justice System announced in the 2019 Queen’s Speech.

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

My Lords, as I said in answer to the noble Lord’s Question on 6 July last year, due to the pandemic, we slowed work to establish the royal commission. Significant new programmes of work were established to support recovery and build back a better system. In the last six months, we have undertaken several new programmes, and our focus is on delivering these priorities over the coming months.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that reply. I make no apologies for asking the Question again, because, as I have said before, I regarded it as extremely discourteous of the Government to ask Her Majesty the Queen to make an announcement which they had no intention of implementing. I had no notice of the intention of the noble Lord, Lord Bach, to bring up this matter on Report on the police Bill. I invite the Minister to say what he said in reply to that intervention.

[Lord Wolfson of Tredegar (Con)]

My Lords, since the Queen’s Speech in 2019, there has been the small matter of a global pandemic, which has affected the criminal justice system very substantially. We reacted to that: we put in place particular new ways of working. We have taken a lot of that work forward: there is the Second Reading this afternoon of the Judicial Review and Courts Bill, which contains more reforms to the criminal justice system. I therefore think, with respect, that it is a little unfair to say—in fact, it is inaccurate—that we have no intention of implementing that. As to what I said in response to the noble Lord, Lord Bach, in Committee, I stand by that, absolutely.

[Lord Thomas of Gresford (LD)]

My Lords, in the Council of Europe’s recent report on penal matters, England and Wales scored very high in a number of categories, including prison population, prison density, suicide rates, the proportion of prisoners not serving a final sentence and the rate of admissions per 100,000 inhabitants. It is almost a world-beating record. Will the Minister ensure that the terms of reference of any royal commission that is set up include an in-depth consideration of sentence inflation in our courts?

[Lord Wolfson of Tredegar (Con)]

My Lords, one of the other things on which we score extremely high internationally is the quality of our judges. That ought to be mentioned as well. So far as prisons are concerned, we published a prisons White Paper in the last six months, which deals with a number of the matters raised by the noble Lord. As to the terms of reference of any royal commission, of course I have heard what the noble Lord has said.

[Lord Singh of Wimbledon (CB)]

My Lords, I refer to my interest as director of the Sikh prison chaplaincy service. Reducing reoffending should be a central aim in any criminal justice system. Does the Minister agree that chaplains of all faiths can play an important role in this by giving purpose and direction to offenders? Does he further agree that there should be equal access to resources and pastoral support for all faiths in a truly multifaith chaplaincy and probation service?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to have the opportunity to express real gratitude for the work done by prison chaplains, particularly during the pandemic when the chaplaincy had to move from face-to-face to telephone or video conferencing. Access is of course ultimately a matter for prison governors, but if the noble Lord has particular concerns in this area, he knows that he can speak to me; I am very happy to have a discussion with him.

[The Lord Bishop of Gloucester]

My Lords, disproportionate outcomes for racially minoritised people in the criminal justice system are well documented, including of course in the Lammy review. Does the Minister agree that care should be taken to prioritise these concerns through the royal commission?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have said on a number of occasions from this Dispatch Box that racial inequality in our criminal justice system goes back many decades. We are absolutely focused on it, and I am sure that any royal commission in this area would want to look at it.

[Lord Farmer (Con)]

My Lords, the pandemic demonstrated more clearly than ever the importance to prison morale and effective rehabilitation of family and other significant relationships. Benefits to prisoners of access to video-calling technology have also been proven. Building back better requires sharpening the emphasis on the third leg of the rehabilitative stool of relationships. Will this and access to technology, as an obvious requirement in a world that is being transformed daily, be key principles in the royal commission?

[Lord Wolfson of Tredegar (Con)]

My Lords, we know that prisoners who maintain contact with their families and communities behave better in prison and have lower reoffending rates when out of prison. During the pandemic, we rolled out video-calling technology to all prisons. We have committed to retaining this long term.

[Baroness Butler-Sloss (CB)]

My Lords, when is it intended to start the royal commission?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am afraid that I cannot go further than what I have already said. We are looking at it, and we want to make sure that we maintain our current programmes. In the last six months we have published a victims consultation, the prison White Paper and national criminal justice scorecards. We have the Judicial Review and Courts Bill this afternoon, and there is a consultation on juries in the consultation on human rights. That is not too bad, for the last six months.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a significant proportion of people on community sentences report having mental health or drug addiction issues, yet very few of those community sentences include mental health or drug treatment requirements, partly because these services are simply not available in many areas. This must change if we want community sentences to be fully effective in helping offenders turn their lives around. Will the royal commission on criminal justice include a review of community-based sentencing?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am reluctant to write the terms of reference for the royal commission from the Dispatch Box, but we do know that such services are absolutely essential for people who have come out of prison. My department works closely with the DHSC to ensure proper join-up when people leave prison, so that they can access services in the community.

[Lord Forsyth of Drumlean (Con)]

My Lords, might it not have been sensible to write the terms of reference for the royal commission in 2019, when it was announced? I do not see how Covid would have prevented the establishment of a royal commission, or how any of the splendid initiatives my noble friend has mentioned would have prevented the commission operating. This an independent group to look at the whole thing across the board, and which does not reflect the Government’s views but looks at all the arguments, surely.

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[Lord Wolfson of Tredegar (Con)]

My Lords, as I understand it the royal commission would need significant resource from the department. The people working on the royal commission were deployed on other work during the pandemic, and that is what they are still doing. The last royal commission was one on this House, and it reported in 2000. I hope that that has not put us off royal commissions in principle. We are still focused on having a royal commission on criminal justice in due course.

[Lord Bird (CB)]

My Lords, could we consider the possibility that we are looking at crime and prisons in the wrong way? There is a lovely printing term, arsy-versy—which is not a rude word. Can we not recognise that, for a specific period, we have a captive audience and we could change them? Many people who have come out of prison have been useful to the community. We need learned experience to help us in the world of crime.

[Lord Wolfson of Tredegar (Con)]

My Lords, I can only agree with that. We have recently looked very carefully at our education programme in prisons, which has undergone an absolute revamp. Minister Victoria Atkins in the other place has had a lot to say about that. Prison is an opportunity to turn lives around. In addition to punishment, we must never forget that part of it is about rehabilitation.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

All the previous arguments—about the deadline being arbitrary and how the time taken to put a case together will be different in different cases, particularly in relation to vulnerable applicants—also apply here. Again, a simple caution similar to the PACE criminal caution appears to me to be sufficient. Whether the timing of the submission of evidence has a bearing on the credibility of the claimant should be a matter for the tribunal, not the Bill.

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

My Lords, I am grateful to all noble Lords who have taken part in this debate, which has ranged fairly widely. I will try to cover everything in my response. I start with Amendments 77, 89, 90B and 95A, which were spoken to by the noble Lord, Lord Coaker, on behalf of Lord Rosser.

We acknowledge that there may be many good reasons why an individual is not able to comply with either the requirements of an evidence notice or the requirements of a priority removal notice. We also accept that those good reasons may often be linked to the trauma that they have suffered. Where such reasons exist, they will be fully considered by decision-makers on a case-by-case basis and thereafter by the judicial system, should a claimant appeal the refusal of a human rights or protection claim.

The key point here is that every claim is unique; that is trite to say but none the less true. I therefore suggest it is correct that case-by-case scrutiny is given to all individuals. The good reasons test therefore takes into account objective factors, such as difficulties in obtaining evidence, but it would also include subjective factors, such as an individual’s particular vulnerabilities—related perhaps to their sexual orientation, as the noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, mentioned; gender identity; or, indeed, mental and physical health. I suggest that the good reasons test, which I think is appropriate, means that Amendment 77 is unnecessary.

To respond specifically to the point made by the noble Lord, Lord Cashman, who invited me to parse or gloss what good reasons are and are not, I respectfully say that the test is deliberately open, not circumscribed, to ensure that all relevant factors in the individual case can be considered. Specifically, I can confirm that LGBTQ+ protections will be dealt with in guidance that specifically addresses good reasons and how they may relate to LGBTQ persons and issues, because of course you can have an LGBTQ issue even if you yourself are not LGBTQ.

Further, under Amendment 77, a vulnerable individual who did not fall within the specified groups listed in the amendment may nevertheless be served with an evidence notice. If they provided late evidence, a decision would be needed on whether or not they had good reasons for that lateness; whereas at the same time an individual who happened to fall within the categories set out in the amendment would be free to raise evidence at any time. For reasons that may be entirely unconnected with the reason for their exemption, they would none the less be automatically free from any disadvantage under the system or the consequences in the legislation, based on what is essentially something of a tick-box exercise. I suggest that that would be unfair.

The noble Lord, Lord Coaker, asked how the test would apply to children. This was taken up by the noble Baroness, Lady Lister, speaking also on behalf of the noble Baroness, Lady Coussins. Guidance will be published setting out how decision-makers should consider the age of the child in the exercise of their discretion. This should be obvious but let me state it from the Dispatch Box anyway: evidence provided by a child will be considered in the light of their age, degree of mental development, and maturity, currently and at all material times previously. As part of our obligations under the public sector equality duty, as the noble Lord, Lord Coaker, said, equality impact assessments have been completed in respect of these clauses. Those assessments incorporate a consideration of the impacts on children.

We are concerned that Amendment 77 could also lead to perverse outcomes, whereby individuals who do not fall into one of the categories identified by the amendment could abuse the process by falsely claiming that they did. That would perpetuate the issues that these clauses are designed to address, to the detriment of genuine claimants, undermining their usefulness.

For similar reasons, Amendments 90B and 95A are unnecessary and would confuse the test to determine the acceptable reasons for something being raised late in response to an evidence notice or a priority removal notice. Unlike the good reasons test, which is fair and is an established principle in the assessment of credibility of an asylum or human rights claim, an unclear and, at least in practice, a rather subjective test of “fairness” risks inconsistent decision-making, which could lead to an increase in uncertainty for both decision-makers and claimants. For those reasons, I invite the noble Baroness to not move her amendments.

Amendment 89 introduces a requirement to publish guidance on good reasons within 30 days of the Bill receiving Royal Assent. This is an arbitrary deadline which is not necessary to include in the Bill. I have already said that good reasons will be set out in published guidance for decision-makers. This will be made available when the measures come into force. The amendment does not assist those in genuine need of protection and would in fact limit the discretion of decision-makers and undermine the effectiveness of the priority removal notices. For those reasons, I invite the noble Lord, Lord Coaker, on behalf of the noble Lord, Lord Rosser, to not move those various amendments.

I turn to Amendments 84, 90 and 96. In accordance with the public sector equality duty, protected characteristics must be considered by decision-makers when they are considering good reasons for lateness following service of an evidence notice or a priority removal notice. However, it is not intended that the good reasons are limited to the characteristics listed in Chapter 1 of the Equality Act 2010. For example, mental health issues or past trauma do not amount to a disability under the Act, but they will also be considered. These may be as important, perhaps even more important, than a protected characteristic in determining whether or not someone has a good reason for lateness. Therefore, the amendment is not only unnecessary but could have the unwanted effect of leading decision-makers to believe that they should be prioritising a narrower range of factors than those already intended within the Bill itself. I invite that amendment to be not moved.

I turn to Amendment 85, in the name of the noble Lord, Lord Green of Deddington, and my noble friend Lady Neville-Rolfe. Again, I associate myself with the remarks of other noble Lords: we wish her well. Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where there are good reasons for providing late evidence, that will not impact on their credibility.

The concept that certain conduct should be damaging to credibility is not new. Decision-makers must consider egregious conduct by the claimant, and it is then open to the Home Office decision-maker or the court to decide the extent to which credibility should subsequently be damaged. The good-faith requirement is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Therefore, there is no need, I would suggest, to single out, as this amendment does, particular behaviours to highlight them specifically.

[Lord Green of Deddington (CB)]

My Lords, is the Minister saying that in practice—I hope he is—if someone has quite clearly destroyed their documents, that will be taken into account when considering their claim?

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[Lord Wolfson of Tredegar (Con)]

I really do not want —as I said earlier—to get into a position of glossing the wording of the Bill. It is very important that decision-makers and the courts are able to look at the Act—I hope that it will become an Act—and not my gloss on it. What they will have to do is to ask themselves whether there are good reasons or other circumstances, and whether the claimant acted in good faith. Those are the tests which they will have to apply. Although it is tempting to do so, I am going to resist the temptation to say that this would be included and that would not be included, because my underlying point is that this has to be assessed on a proper case-by-case basis and the statutory tests applied. I am going to leave it there, because I think I have said it clearly enough.

Let me now turn to Amendment 86A in the name of the noble Baroness, Lady Hamwee. For the priority removal notice to achieve its objective and operate efficiently, it is essential that those who receive the notice should raise any relevant claims and provide information and evidence before the date specified in the notice. That is to ensure that all claims can be considered sufficiently in advance of the person’s removal, reducing the extent to which removal can be frustrated, and to allow those, on the other hand, in need of international protection to be identified and supported as early as possible. For individuals who have received a priority removal notice, there will be standard timescales for recipients to respond, which will be set out in guidance. Guidance for decision-makers will also set out the circumstances where it would be appropriate for these timescales to be adjusted or extended.

When considering whether to extend the standard timescale, decision-makers will be required to take into account a wide range of factors and will not just be limited to the recipient’s experience of, or alleged experience of, sexual or gender-based violence or torture, or modern slavery or trafficking. The approach is certainly not arbitrary, to use the noble Baroness’s word. The guidance will, therefore, actually go further than these amendments and will require decision-makers to consider a wider range of issues when determining what is a reasonable and fair timescale for an individual to be able properly to respond to a PRN. For those reasons, I invite the noble Baroness not to press her amendment.

It should also be noted, while I am on this point, that all recipients of a PRN will receive a legal aid advice offer to support them in responding to the notice. Having experience of sexual or gender-based violence or torture, or modern slavery or trafficking, does not necessarily mean—I underline the word “necessarily”; I do not want to be taken out of context here—that an individual will acquire additional time or a longer period to respond. There are many factors and reasons why an individual may require additional time to respond. Again, each case has to be looked at on its own circumstances. Therefore, we need to adopt a case-by-case approach, and not the approach set out in this amendment.

Turning now to Amendment 87, in the name of the noble Lord, Lord Paddick, a person who has been issued with a priority removal notice can be subject to the conditions of the notice while it remains in force. That is a 12-month period after the cut-off date or, where a claim is received prior to the cut-off, the 12-month period after they have exhausted their appeal rights. We suggest that that is a reasonable period, which recognises that personal circumstances can change over time.

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[Lord Etherton (CB)]

Is the Minister able to give an assurance that this guidance, which has been referred to a great deal, rather than putting what I would describe as cautionary provisions in the Act itself, will be ready before the Act comes into force and will be made sufficiently public so that there can be discussion and consideration of it by the general public?

[Lord Wolfson of Tredegar (Con)]

My Lords, I think I was asked a similar question, in a different context, on the police Bill. I will give the same answer, not least because I am conscious that a lot of these provisions are actually Home Office provisions. I can assure the noble and learned Lord that I will write to him with the answer to that question, so that when this matter comes back he will be in possession of the answer—rather than make an educated guess, which might turn out to be slightly inaccurate, from the Dispatch Box. I hope that is sufficient.

[Baroness Lister of Burtersett (Lab)]

My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.

[Lord Paddick (LD)]

I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?

[Lord Wolfson of Tredegar (Con)]

Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.

[Baroness Chakrabarti (Lab)]

It may be that, because it has been a long day, I have missed something, or it may be that I have jumped the gun and the Minister was about to come to this point, but I have not yet heard the justification for having Clause 25 at all.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

There are a number of ways of skinning this particular cat because there are separate amendments but common themes. If when I am about to sit down, I have not dealt with it fully, I am sure the noble Baroness will intervene, but I will try to come to Clause 25 head on.

However, I was going to go next to Amendments 82A and 82B, both in the name of the noble Baroness, Lady Hamwee. Different elements of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 have different thresholds in how they are applied to the facts of a case and how credibility is consequently damaged. Clause 18 is drafted to take this into account, so that decision-makers will take into account the relevant thresholds on a case-by-case basis. Clause 18 will encourage claimants to engage with the process in good faith and, along with the measures relating to late evidence in Clauses 17 and 25, to provide evidence in support of their claim at the earliest opportunity. As I said earlier, we think that by encouraging people to bring all their evidence upfront in protection or human rights claims, we can protect those who need protection and identify any unmeritorious claims as early as possible.

Turning to Amendment 82B, the good faith requirement is intended, as I think is obvious, to address behaviours that a deciding authority thinks are not in good faith. Where an individual who makes a protection or human rights claim exhibits a pattern of non-compliant behaviour during their dealings with immigration authorities, their credibility should be damaged to reflect that behaviour. It is also designed to stop claimants deliberately obstructing the one-stop and expedited judicial process—for example, by not taking up our enhanced legal aid offer and then making a last-minute claim based on lack of access to legal advice. The good faith requirement therefore goes further than the behaviours currently described in Section 8 of the 2004 Act. It puts beyond doubt that past behaviour that is deliberately designed to frustrate or delay proceedings should be damaging to the claimant’s credibility. We think that is right, for the reasons I have outlined.

I turn to Amendments 83 and 88, which would remove the credibility provisions in Clauses 18 and 21. For the reasons that I set out earlier, we think that it is entirely reasonable to require evidence in support of a protection of human rights claim, or a claim of being a victim of modern slavery, to be provided in a timely manner, unless there are good reasons why that is not possible.

However, I underline that a person’s credibility is not necessarily determinative of their claim under the current rules and procedures, and the Bill does not change that. Decision-makers will still be required to consider credibility in the round, as they currently do, and, where a person has raised evidence late, which causes delay and wasted resource, it is right that decision-makers consider whether there is any merit in the reasons for that lateness.

I turn now to Amendment 90A, again in the name of the noble Baroness, Lady Hamwee. We recognise that, due to an person’s individual circumstances, it may be harder for them to provide material in a timely manner. Since this is essentially an amendment to Amendment 90 in the name of the noble and learned Lord, Lord Etherton, I respectfully direct the noble Baroness to the response that I gave to the noble and learned Lord.

As I am on the noble and learned Lord’s amendments, I will now deal with Amendment 91 on reasonable grounds. It is right that, where an individual has been assessed as a priority for removal or deportation, they should avail themselves of the associated legal aid advice offer and provide any matters listed within Clause 19(3)(a) before the cut-off date and they should provide reasons for lateness where a late claim is raised, under subsection (7).

Decision-makers cannot reasonably be expected to speculate on or investigate why an individual who has received a removal notice and associated legal aid advice offer would raise a late protection or human rights claim. If no reasons for lateness are provided, or if the reasons provided are not considered to be good reasons, it would be clear to the decision-maker that any appeal must be subject to the expedited appeals process. In answer to the noble and learned Lord, I say that the good reasons test is adequate and sufficient.

The clause already provides significant safeguards for recipients of a PRN in the form of the legal aid advice provision and the good reasons test for individuals who raise late claims. I set out earlier what those good reasons can amount to. It is a very open-ended test. Therefore, I respectfully suggest to the noble and learned Lord that the amendment is unnecessary and, indeed, would risk complicating an otherwise straightforward and, I suggest, suitable test.

I turn now to Amendment 95 in the name of the noble Baroness, Lady Coussins, but spoken to by the noble Baroness, Lady Lister. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers should have regard to the principle —I underline “principle”—that minimal weight is given to evidence that is late, following receipt of either an evidence notice or a priority removal notice, without good reason.

I will come to the thrust of Clause 25 in a second, but I will first say that this amendment would place an obligation on decision-makers, not only in the Home Office but also the judiciary, to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. That would remove the requirement that decision-makers should have regard to the principle that minimal weight should be given to the evidence. That would be the case even if the reason for lateness was wholly unconnected to the category of claim or the personal factors. No causal link between the two is set out in the amendment. I respectfully suggest that that is overly prescriptive and would tie the hands of the decision-maker. Of course, in all cases, the decision-maker can take these matters into account—

[Baroness Lister of Burtersett (Lab)]

It is not my amendment so maybe it could be worded better. The noble Lord gave great emphasis to the case-by-case basis earlier, which sounds very reasonable, and he talked about subjective factors. Has he read the recent research from the British Red Cross about women seeking asylum? It found that frequently their claims are met with disbelief and they are not treated very well at all. There is a lack of recognition of gender-based violence that they may be fleeing from, as the noble and learned Lord, Lord Etherton, talked about earlier. I suggest that the noble Lord and those responsible for this clause look at this research, because I worry about putting so much emphasis on subjective factors and the case-by-case basis.

[Lord Wolfson of Tredegar (Con)]

I think I have received the email from the Red Cross, as I think it emailed everyone. I have set up a folder for all these briefings, so I do not want to say that I have read it, but if I have been sent it I certainly have it and will read it. However, due to pressures of other business, I cannot say that I have read all the material yet.

[Baroness Lister of Burtersett (Lab)]

I absolutely understand—I do not think it was in its general briefing, but it produced a separate report last week or the week before, and it is worth looking at.

[Lord Wolfson of Tredegar (Con)]

In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.

I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.

[Baroness Chakrabarti (Lab)]

I am saying that, if we trust—as I am sure the Government do—immigration officers, the Secretary of State, the First-tier Tribunal, et cetera, to be intelligent, effective operators in the system, they are by definition capable of looking at late evidence on a case-by-case, open-textured, well-reasoned basis and determining those occasions where there is a good reason and those where there is not. That goes without saying, so why do we have to have this diktat in the Bill, with “must” give it “minimal weight”? I suspect it is because, as the noble Lord, Lord Paddick, suggested, the Government are trying to dictate to the tribunals in particular what is and is not a good reason. That is the sinister aspect of this. It is also impractical, because you then have to have arguments about what is and is not a good reason. I promise the Minister that this will be litigated ad nauseam. It would be better, as he said to other noble Lords, to leave this to open-textured judgment and decision-makers who are capable of applying it.

[Lord Wolfson of Tredegar (Con)]

As regards the in terrorem threat that things will be litigated ad nauseam, I am tempted to say that that is not really a change from the current position. More substantively, and with respect, to say that the clause sets out that the tribunal “must give … minimal weight” to the evidence, as the noble Baroness just put it, is not what it does at all.

[Baroness Chakrabarti (Lab)]

It says that they have to have good reason.

[Lord Wolfson of Tredegar (Con)]

It does not do that either.

It does not say that the tribunal “must give the evidence minimal weight”; it says that the tribunal

“must, in considering it, have regard to the principle that minimal weight should be given to the evidence”.

The tribunal is perfectly entitled to say, “Well, we’ve looked at that principle. Actually, we’re not going to apply it here”—for reasons A, B and C. There is no requirement and no fettering of the tribunal; there is no compulsion that the evidence be given minimal weight. What the decision-maker has to do is have regard to the principle that minimal weight should be given to any late evidence unless there are good reasons why it is provided late.

[Baroness Chakrabarti (Lab)]

I promise that this is my final intervention on the Minister, but I do not understand why we have to have the provision at all. He is saying that it is perfectly open-textured enough, that good reasons do not have to be specified in the Bill because the Government are not going to put glosses on it or be overly prescriptive, that they can be objective good reasons or subjective good reasons, that it is only about having regard to the new principle that they are inventing et cetera. Why have this at all?

[Lord Wolfson of Tredegar (Con)]

It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

[Lord Coaker (Lab)]

I thank all noble Lords who have spoken in this very important debate. I also thank the Minister. Yes, it was a long reply, but it was an important one and it did not take up too much time. Sometimes long replies are needed, and the Minister was right to take the time that he took to respond. There are a large number of points on which I could reply to the Minister, but it is clear that we will have to come back to some of them on Report.

If the Minister does not mind me chiding him slightly, I will say that that was a bit of a “no worries, no problem” defence: “Everything is fine. It will all be sorted in guidance, although we will not see it until some future time. Do not worry about the children problem that the noble Baroness, Lady Lister, raised, because we have all taken into account the sensitivity of children and how old they are. Do not worry about LGBTQI because they will all be very reasonable. Do not worry about the good reasons either—it will all be sorted. Good reasons mean good reasons. Nobody will do anything about it if the reasons are good.”

One example where the Minister was in trouble at the end essentially concerned Clause 25(2). When is a principle not a principle? Is it a principle when it is written down? I love the phrase “have regard to”; it is always put in. The Minister said that we do not have to take X or Y into account. In a sense, he agreed with the JCHR that a better word would be “may” instead of “must”. This is quite a significant change—something may be taken into account, or it may not be. At the moment, it says “must”. This is the problem with which he was trying to wrestle—first, whether there is a principle at all, and secondly, whether “may” or “must” should be used.

The Government are seeking to deal with the problem that the asylum system is in chaos. Half the decisions are overturned on appeal. Panic has broken out. The Government say, “We cannot have this. The public are going mad. Everybody is dissatisfied. We will get more and more of this. Everyone is making late appeals. They are not abiding by the rules. We have to do something.” A whole series of new measures is being taken to overcome a bureaucratic problem. In the end, it needs good—probably trained—decision-making, speedily done, to get a system that works. The Government will not address the very real problem in the Bill, particularly in respect of late priority notices, except on a piece of paper. In a year or two or three, there will be a Nationality and Borders Bill mark 2. If they are not careful, whoever is in government—I hope it will be a different Government—will be panicking in the face of it not working. They will bring in other measures.

Much of what has quite rightly been raised by noble Lords across the Chamber will have to be revisited on Report. I thank the Minister again for his courtesy and for the time and trouble he took to try to respond. Finally, the sooner we have a look at the guidance, the better. It is very frustrating when the Government say that they will publish the guidance and it is published after the Bill is passed. We deserve to see the guidance as soon as possible. I would be very grateful if the Minister could pass this on. I seek leave to withdraw the amendment.

--- Later in debate ---

Secondly, but still on the point of efficiency, concerns have been raised that far from making the system faster, this will lead to a backlog of cases in the Upper Tribunal. Can the Government say what estimation has been made of the impact of these provisions on the upper tribunal?

[Lord Wolfson of Tredegar (Con)]

My Lords, in the last group I spoke at some length. This time I hope to be more brief. The principles have been discussed in some other groups and the points at issue are of relatively narrow ambit, although they are important.

Clause 22 creates a new expedited appeal that will be heard in the Upper Tribunal. Too often, those facing removal or deportation utilise delay tactics to thwart removal action, such as withholding relevant information in their initial claim, which can be used later if they are first refused, resulting in late and repeated claims and subsequent appeals. That is both costly and an unfair burden on the courts and tribunals system. With this clause, appeals in relation to late human rights or protection claims brought by recipients of a PRN are determined quickly, with decisions being final. That removes the incentive for bringing late claims.

Where a person provides good reasons for a late claim, their right of appeal will not be certified as an expedited appeal. Furthermore, the Committee will note in Clause 22(5) that the Upper Tribunal retains discretion and when it considers that the only way that justice can be done in an individual appeal is to remit to the First-tier Tribunal, that is what it will do. Therefore, while I agree with the noble Lords, Lord Paddick and Lord Rosser, that better decision-making is important and certainly part of the answer, I do not accept the implication of their contributions, that it is the only answer. This is also an important thing that we can do to improve the system.

Clause 23 works together with Clause 22 to ensure that individuals cannot utilise the appeal system as a tool for delay. Clause 22 provides expedited appeals to be determined quickly and finally by the Upper Tribunal. There may be additional rights generated by other claims that an individual may want to exercise in parallel with an expedited appeal. Those other appeals might usually be heard in the First-tier Tribunal. Therefore, without Clause 23, an expedited appeal might have concluded but there would be an outstanding appeal in the First-tier Tribunal, which would prevent removal. Clause 23 provides that the other related appeals will be heard by the Upper Tribunal at the same time, so provides a suitable one-stop shop. Again, there is a safeguard to ensure that in cases where the Upper Tribunal thinks that justice can be done only by continuing the appeal in the First-Tier Tribunal, it can do that. That is the burden of Clause 23(7).

For those reasons, which are brief but, I hope, persuasive, I beg to move that Clause 22 stand part of the Bill.

Clause 22 agreed.

--- Later in debate ---

As I say, we support the amendment and the purpose behind it, but our initial feeling is that seven hours is not enough time for a legal representative to take instructions from, advise and represent individuals who are often among the most vulnerable people in society. That, I think, is the cue for the Government, in their response, to indicate how they came to the conclusion that seven hours was sufficient, and how they would argue, even though it may be an equally arbitrary figure, that 20 hours is excessive. I await the Government’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all those who have contributed. These amendments obviously deal with matters of legal aid, and I remind the Committee that LASPO is the Legal Aid, Sentencing and Punishment of Offenders Act, just to put everybody out of their misery—otherwise they will not be able to sleep when they get home. I will be quick, but I will just make one point: with great respect to the noble Lord, Lord Rosser, this is not a matter of generosity. This is not about the Government being generous. I do not want to sound high-falutin’, but this is about the rule of law. Abiding by the rule of law is not a matter of generosity; it is simply non-negotiable, and this provision is in the Bill because it is a proper and necessary thing to do.

Amendment 93 and 94 seek to provide up to seven hours of free legal aid to individuals with a slavery or trafficking notice. They are unnecessary because existing legal aid rules will already ensure that individuals can receive more than seven hours of advice if they receive a slavery or trafficking notice. The key point to bear in mind—and I accept that this is complex—is that a slavery or trafficking notice can be issued only to individuals who have made a protection or human rights claim. That is relevant because it means that they are already within the immigration system and legal aid is already available in order to make that protection or human rights claim. So, in a case where an individual is in receipt of legal aid for their protection or human rights claim and they then receive a slavery or trafficking notice, they are already entitled to advice on that notice as part of their protection or human rights claim. Importantly, there is no limit on the number of hours that can be provided on someone’s protection or human rights claim. Legal advice is available until the matter is resolved, and it may well be for considerably more than the seven hours—or, indeed, 20 hours.

[Baroness Ludford (LD)]

I am really sorry, I know we are looking at the clock, but if I have understood it, and I am sure the Minister is briefed to the hilt, the problem is that he who has, gets more, as it were. If you are already in the asylum system and then you get the notice, you will get even more legal aid—but what if you have not already made a protection claim? What about those people?

[Lord Wolfson of Tredegar (Con)]

The noble Baroness must have had access to my notes, because that was just the point I was going to make. I have written down here that I know the Committee will ask about individuals who are not receiving legal aid for their protection or human rights claim—and sure enough, the Committee did. My answer is that there could be multiple reasons for an individual not receiving legal aid in those circumstances. The individual might not have passed the means or merits test, and those two tests, as the Committee will know, are there to ensure that legal aid is targeted at those most in need who cannot afford advice themselves. That is one possibility, and I will come back to that in a moment. Another possibility—and this does happen—is that the individual has just made an application to the Home Office by themselves and has not sorted out a lawyer. If so, I would strongly encourage them to seek out a legal aid lawyer, who would be able to provide more than the seven hours of advice that could be provided.

Turning to Amendment 94A, the short answer to why we have specified up to seven hours in Clause 24 is that a balance must be struck between giving free legal advice and using taxpayers’ money responsibly. Seven hours is intended to reflect that this is an opportunity for initial legal advice to help individuals understand what the notice is and what it is requiring them to. It is available on a non-means-tested and non-merits-tested basis. That means that anyone with a PRN is guaranteed access to legal aid for up to seven hours, but it does not mean that, after seven hours, there is no further access to legal aid. Some individuals will need further advice; it is not intended that seven hours will resolve every immigration issue. At the end of the seven hours, any individual who has an issue within the scope of the legal aid scheme and who passes the means and merits test will be eligible for ongoing legal advice funded by legal aid until the matter is resolved.

I am conscious that that gets us into the territory of means and merits tests. I answered an Oral Question in this area on Tuesday, when I said that there was a review of the means test under way at the moment, on which I have personally spent a lot of time. I hope very much that we will soon be able to go out for consultation on that. We are conducting a really thorough review of the means test.

Finally, I will address the noble Baroness’s concerns that the exceptional case funding scheme might not be up to standard. Respectfully, I disagree. That scheme is specifically designed to act as a safety net and to provide legal-aid funding to individuals who can demonstrate that, without it, their human rights might be breached. In 2019-20, of the immigration cases that applied for exceptional case funding, 80% were granted legal aid, so that shows that the system works. We are continuing to work with legal aid practitioners and the Legal Aid Agency to improve the scheme if we can.

For the reasons that I have set out, I hope that the noble Baroness, speaking also for the noble Lord, Lord Dubs, will be content to withdraw the amendment.

[Baroness Hamwee (LD)]

Before my noble friend responds, could the Minister at least acknowledge that it is not just a matter of hours? It is a matter of the difficulties of finding a legal aid lawyer and the very clear existence of legal aid deserts and so on? Even when it is not a desert, there are difficulties which are, to a very considerable extent, related to the terms for the lawyers themselves. I do not know whether it ever occurred to the noble Lord that he might pursue a career in legal aid; he probably felt as guilty as I used to, when I was in practice as a solicitor, that my firm did not do legal aid, or at least it gave up doing it. That is partly because you need to specialise in legal aid, as well as the subject that you are dealing with, and that is very difficult for a lot of lawyers. It has led to two classes of lawyers, and that is a very bad thing.

[Lord Wolfson of Tredegar (Con)]

The noble Baroness’s question is quite broad. She knows that we have had a number of discussions about legal aid, which will continue. I did not do much legal aid in my practice. I do not want to advertise from the Dispatch Box, but my brother-in-law is one of the finest criminal legal aid solicitors in London—I am sure that no one here will ever need his services, but he is absolutely brilliant, none the less.

More seriously, I am very conscious of the need to make sure that people have access to a lawyer with the relevant skill set, because a general right to legal aid is not much use if you cannot find a legal aid lawyer—I absolutely appreciate that. On Tuesday, I explained some of the efforts that we are making in this area. To say any more now might trespass on the Committee’s patience, but I am obviously well aware of this point.

[Baroness Ludford (LD)]

I appreciate the care with which the Minister has responded to these amendments. Although he started by saying that they were unnecessary, he conceded that there is a group of people who do not get legal aid. We might differ in our views on how meritorious they are in any claim for legal aid, but he said that they could find a solicitor and get legal aid that way—but that might not be the easiest thing in the world, for reasons that include what was just discussed. I am afraid that I am not really persuaded.

I will read the Minister’s remarks in Hansard, but I do not think that he denied that there are people who do not get legal aid. The fact that the anti-slavery commissioner was on the case with the JCHR shows that it is not just these Benches over here that think that this is an issue. For the time being, I have to accept that the Minister has given his response and I cannot get any further. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser (Lab)]

In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would

“likely be disposed of expeditiously.”

Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?

The Explanatory Notes state:

“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”


As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.

The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.

We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It held that the policy did not sufficiently appreciate

“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,

nor did it

“adequately take account of the complexity and difficulty of many asylum appeals”

and

“the gravity of the issues that are raised by them”.

Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that

“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”

Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.

The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?

Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?

One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.

Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.

So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.

I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.

--- Later in debate ---

[Lord Rosser (Lab)]

I may not have been listening as attentively as I should have been, but if the Minister has already said it I ask him to repeat the criteria under which the Secretary of State will make the decision that he or she considers that the appeal is likely to be disposed of quickly, which was a question I asked. Another point rises from something he said—that the clause now sets an extremely high bar for an appeal to be released from the scheme, and provides that it can be done only where

“it is the only way to secure that justice is done.”

Am I not right in saying that this has been amended by the Government during the Bill’s passage, and that the original language permitted the release of a case if the tribunal

“is satisfied that it is in the interests of justice to do so”?

Why is it no longer the case that “the interests of justice” are a good enough reason to take action?

[Lord Wolfson of Tredegar (Con)]

I shall reply to the second point first, if I may. The language in Clause 26(5) is essentially the same language as in Clause 23(7).

[Lord Rosser (Lab)]

Is it the same or essentially the same? My understanding, and I may be wrong, is that the Bill now says that

“it is the only way to secure that justice is done”,

where previously it said

“that it is in the interests of justice to do so”.

They may be similar but they are not the same words.

[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord again for his detailed responses. On the first point, on Amendment 97, I just hope that we do not find ourselves back in litigation. He asserts that the Bill avoids the pitfalls that the Court of Appeal found in 2015 and that the Tribunal Procedure Committee found later. Let us hope so, because obviously, resorts to litigation will also be something that gums up the system, which the Home Office already says is broken. Time will tell if this is going to stay as it is.

On Amendment 99, I believe that the noble Lord, Lord Rosser, is right. If my memory serves, the wording has changed since the Bill was in the other place. Certainly, the JCHR would suggest that wording that says that the tribunal “must”—not just “may”—if the interests of justice and fairness require it, take an appeal out of the accelerated detained system is stronger than the wording that is there at the moment. It says that the tribunal “must” if—and it is a broader test—it is in the interests of fairness and justice. It is a better test, and a fairer and more just test, so I am disappointed that the Minister does not like that amendment—although I guess I am not terribly surprised. On that note, I can only withdraw my amendment.

Social Welfare Law Cases: Legal Aid

Lord Wolfson of Tredegar Excerpts

Tuesday 1st February 2022 Lords Chamber

[Lord Bach]

To ask Her Majesty’s Government what plans they have this year, if any, to restore legal aid for social welfare law cases.

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

My Lords, following a consultation which concluded in January this year, we will lay legislation later this year proposing better access to social welfare advice for people facing possession proceedings. On 19 January, we laid legislation to pilot the provision of early legal advice for debt, housing and welfare benefit matters. The pilot will commence later this year. We will shortly publish our review of the means test for civil legal aid.

[Lord Bach (Lab)]

My Lords, I thank the Minister for his reply. Many who work in this vital area of law very much welcome his departmental responsibility for civil legal aid and social welfare law for the reason that we and they know that he is a powerful supporter of access to justice for all. However, does he agree that the small but welcome steps the Government are taking in this field are peanuts when compared to the millions of pounds that has been cut from social welfare law funding year on year and the hundreds of thousands of our fellow citizens who have been unable to get advice and assistance? Does he further agree that, for as long as many of our fellow citizens—often those with the very least—are deprived of access to justice by not getting the advice and representation they need, there remains a stain on our much-vaunted legal system?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am well aware of the noble Lord’s experience and work in this area, and I respectfully commend him for it. If I may say so, I think it is rather unfair of him to say that we are spending peanuts, when actually last year we spent £1.7 billion on legal aid services. I agree with him that access to justice is a fundamental part of any justice system, and our reforms are intended to ensure that people have not only legal aid but legal support at an earlier stage of the proceedings.

[Lord Thomas of Gresford (LD)]

My Lords, The Impact of LASPO on Routes to Justice, by Dr James Organ and Dr Jennifer Sigafoos of the University of Liverpool and published by the Equality and Human Rights Commission in 2018, found that, due to the lack of legal aid and the demise of specialised advice, the high demand for advice on disability benefits means that the almost complete removal of welfare benefits from the scope of legal aid has had a disproportionate impact on disabled people and those with long-term health conditions. The Minister mentioned a number of areas where pilots are being carried out, but will the Government take steps to restore the funding, at least for this important sector of the community?

[Lord Wolfson of Tredegar (Con)]

My Lords, I note that when it is Justice Questions we always seem to have longer questions. We are starting a pilot in both Manchester and Middlesbrough to focus on the point that the noble Lord makes: to what extent can we divert people away and solve their problems at an earlier stage? I am aware of the report the noble Lord mentioned, and of others, but we are starting a pilot, so that we have evidence of what actually works on the ground.

[Lord Sandhurst (Con)]

My Lords, I thank my noble friend the Minister very much for his first Answer. I remind him that the Conservative Lord Rushcliffe’s 1945 report urged that:

“Legal aid should be available in all Courts and in such manner as will enable persons in need to have access to the professional help they require”.


At the last pre-Covid count, in more than half the local authorities in England and Wales, with some 22 million people, there was no provider in the field of housing legal aid. Would it not be a simple first step in the process of levelling up to take immediate steps to fund at least one such provider in each local authority in England and Wales?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am aware of the issue with legal aid for housing. I should make two points. First, we keep this under review and are making special efforts to ensure that we find providers in areas where there are currently no providers. Secondly, as my noble friend will also be aware, wherever you are in England and Wales you can always get legal advice through the CLA telephone service. Legal advice is always available.

[Lord Morris of Aberavon (Lab)]

My Lords, the Government trumpet their intention of levelling up the disadvantaged regions through investment. Will the Minister at the same time take steps to provide adequately and properly for the needs of the disadvantaged individuals at the bottom of the ladder by providing investment for their levelling up, so that they can put their cases without disadvantage? Does the Minister really consider that they are properly dealt with?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have already mentioned the pilot we are starting in Middlesbrough and Manchester to identify the best way of providing legal aid for, among others, those people. I also said in a previous answer that we are looking at a review of the means test for legal aid. Indeed, we have revoked that means test for various parts of civil legal aid to ensure that people can access courts when they are most vulnerable—for example, domestic abuse victims seeking a non-molestation order.

[Lord Bird (CB)]

Do we need a pilot when we know that, when you are on social security, there are so many things around welfare that exclude you and make you feel that you are actually not a part of democracy and society? Around justice, you do not need some test; you need to roll it out and get it working.

[Lord Wolfson of Tredegar (Con)]

My Lords, with respect, you need a test to ensure that what you are doing is the most useful thing you can do. For example, we are looking at putting legal advice centres in hospitals, because we know that people who have legal problems often have other social welfare problems as well. It is often the case that you cannot resolve all your problems through the law; you need a holistic approach. I think we need some hard evidence, and the pilot will be very useful in this area.

[Lord Watts (Lab)]

My Lords, is it not the case that the Government’s review and the pilot schemes demonstrate that the Government got it very badly wrong when they cut millions of pounds from this area? Would it not be better to restore those cuts and then do a proper review and make sure that, this time, it covers people and gives them some rights?

[Lord Wolfson of Tredegar (Con)]

My Lords, I made a commitment to myself today not to mention the words “Grayling” or “Gray”. What I would say is that, in this area, there is no going back to the pre-LASPO position. What we want to do in other areas of law where LASPO gave people legal aid is to divert them from the courts altogether. For example, in private family cases we have a mediation voucher scheme. We do not want people in court arguing about private family cases; we want them to resolve their problems outside court through mediation.

[The Lord Bishop of St Albans]

My Lords, it is to be welcomed that there is pilot scheme going on. I am particularly pleased to hear about the mediation scheme, which is crucial to trying to find ways to deal with things one-to-one. Can the Minister say a little more though about what is going on? What I hear from people working in the legal system is that it is absolutely blocked up by people who cannot get advice, or indeed aid, coming with hopeless cases. If only they could be given guidance earlier on, we might be able to solve some of the huge backlog, which is in itself an injustice.

[Lord Wolfson of Tredegar (Con)]

The right reverend Prelate is right: we want to ensure that people do not go to court when they do not need to. During the pandemic we invested £5.4 million in not-for-profit legal support services, to make sure that people can have access to early legal advice so that only those who need the assistance of a judge go to court.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, it is 10 years since the LASPO Act came into force, which so dramatically reduced legal aid funding. The Government’s review of LASPO, published in February 2019, pointed out that the housing sector was particularly affected by these cuts, and that when housing legal advice was in scope, people were still failing to get access to the relevant legal advice. What will the pilot that the Minister has talked about do to help people get the advice which they are entitled to in any event?

[Lord Wolfson of Tredegar (Con)]

My Lords, the pilot that I was referring to is a general pilot in relation to social and welfare entitlements. Regarding housing possession cases, as the noble Lord knows, there is a housing possession court duty scheme. We are running a specific focus on that, because there are areas where people are not getting the advice that they need. That was paused during the pandemic because we put a complete halt on repossessions, but we are now looking at the best way to make sure that we get focused housing advice to people who need it, when they need it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, what was the Government’s original motivation back in 2012? Presumably, it was to save money, which this probably has not done overall. What the Government have done is to throw thousands of the poorest people in the UK into a situation where they cannot find justice.

[Lord Wolfson of Tredegar (Con)]

I am afraid that I cannot assist the House with what the Government’s motivation was in 2012. My motivation is very simple: the rule of law and access to justice. It is as simple as that.

Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Lord Wolfson of Tredegar Excerpts

Thursday 27th January 2022 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the draft Order laid before the House on 16 December 2021 be approved.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 25 January.

Motion agreed.

Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Lord Wolfson of Tredegar Excerpts

Tuesday 25th January 2022 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Competition Appeal Tribunal (Recording and Broadcasting) Order 2022.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the statutory instrument before us this afternoon grants the Competition Appeal Tribunal a permanent power to broadcast its hearings to the public using audio and video technology. I put it in terms of a power because the decision to broadcast in any case is subject to judicial discretion, should the judge have a reason in a particular case not to allow a hearing to be broadcast. The draft order is made under Section 32 of the Crime and Courts Act 2013 with the concurrence of the Lord Chancellor and the Lord Chief Justice. Importantly, this order replaces a temporary order which will expire on 25 March 2022.

For noble Lords who are not intimately familiar with it, the Competition Appeal Tribunal, more generally known as the CAT, is a specialist tribunal whose principal functions are to hear and decide cases involving competition or economic regulatory issues, including appeals to decisions by the Competition and Markets Authority and some other economic regulators. The CAT is sponsored by BEIS, the Department for Business, Energy and Industrial Strategy, but, as the power to make this order is conferred on the Lord Chancellor, it has therefore been drafted and laid before Parliament by the Ministry of Justice.

Noble Lords will be aware that, during the pandemic, our courts and tribunals swiftly moved to holding hearings remotely using audio and video technology. To ensure that open justice was maintained in these circumstances, a temporary provision in the Coronavirus Act 2020 allowed most courts and tribunals to transmit their proceedings to remote observers who had specifically requested access. The CAT was not included in the Coronavirus Act 2020 provisions. So, to ensure that the CAT could continue to hold its hearings and broadcast them, a temporary statutory instrument, under Section 32 of the 2013 Act that I mentioned, enabled the CAT to broadcast its proceedings via a link on its website.

That has worked successfully. In a recent case concerning Newcastle United Football Club, around 33,000 individuals from over 50 countries were interested in watching the hearing, with around 4,000 observers watching it at any one time. Whether that was due to the legal issues in that case or was related to Newcastle United Football Club, I am afraid I cannot assist the Committee.

This current and temporary SI will expire, as I say, on 25 March this year, when the Coronavirus Act 2020 is due to expire. Because the broadcasting in this tribunal has been a success, we want to make the CAT’s ability to broadcast its proceedings permanent.

This instrument reproduces the existing temporary order, with two additional provisions which I should bring to the Committee’s attention. One is provision to revoke the temporary order, which is self-explanatory. The other mirrors provision included in other instruments under this power in relation to the Court of Appeal and Crown Court and requires that any use of the footage of the CAT must be fair and accurate. For example, it cannot be used for party-political broadcasts, advertisements or promotions, light entertainment or, need I add, satire. Additionally, the CAT has guidance accompanying each hearing listed for broadcast containing a warning that it is not permitted for any person to record a live-stream hearing and that breaching this requirement would constitute contempt of court.

I underline the point that this order strengthens the principle of open justice, which is a fundamental principle in this jurisdiction and has been for centuries. It means that those who are interested will be able to watch the CAT’s proceedings from the convenience of their homes or offices, or anywhere else. Importantly, it retains ultimate judicial discretion over the actual broadcast in any particular case. I commend this instrument to the Committee.

[Lord Thomas of Gresford (LD)]

My Lords, the Liberal Democrats have always supported open justice and continue to do so. Therefore, we very much support this instrument. During the lockdown periods, I watched my daughter-in-law, who is a judge of the First-tier Tribunal, conduct her hearings online. She has done so consistently in providing justice in the north-west. I have been very impressed with the way in which justice has been seen to be done in that area. I have nothing further to add.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the contributions to this short debate. I was particularly keen to hear the comments of the noble Lord, Lord Thomas of Gresford, on open justice, and I respectfully endorse them. That is a principle we absolutely share.

I will say a brief word about online hearings, a point which the noble Lord, Lord Ponsonby of Shulbrede, picked up. I want to draw a distinction between the provisions in this instrument, which relate to broadcasting hearings to those watching, and online hearings, when the advocates or witnesses are appearing online, which are slightly different but related and important. I have spoken about that on a number of occasions. Online hearings certainly have their place and, more than that, are likely to be the future of civil and sometimes criminal justice going forward.

As the noble Lord, Lord Ponsonby, said, it is critical to keep standards at the requisite level. I am not sure whether a counsel who hears the phrase “keep the bar high” from a magistrates’ bench would necessarily interpret it in the right way, although that probably lies well beyond my personal experience. As to an example of a case where a judge might say that the hearing should not be broadcast, it would be rare in the Competition Appeal Tribunal for this to happen. There may be cases where you had a vulnerable witness or cases involving children, but I suspect that it will be very much the exception rather than the rule. The critical point is that we allow the individual judge in a case to make that decision for themselves, a point that has been shared across the Committee.

There is other business before the Committee. I do not intend to take more time on this, but I invite the Committee to support this instrument.

Motion agreed.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

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

My Lords, this amendment has been tabled—in haste, it appears, as I will explain in a moment—at a very late stage in proceedings. It is not clear in its intention and appears to relate to an important category of people who I do not think any of the speakers in support of the amendment referred to. I will come back to that point.

I listened carefully to the noble Lord, Lord Grocott, who said that he came cold to this matter. Far from being cold, I have had a number of warm meetings with Members from all sides of this House on all matters relating to Ministry of Justice provisions in the Bill. I regret to say that until this amendment dropped without warning, half way through my dinner last night, none of its proposers had found the time to engage with me or approach me in any way on this matter since it was debated in your Lordships’ House. That is a matter of regret, because in my relatively short time here I have found that discussions before matters are raised in the Chamber can be very useful. Had the matter been raised with me, I would have had the opportunity—and I would have availed myself of it—of pointing out some of the confusion behind the amendment and asking the noble and learned Lord whether the amendment he has tabled is in fact the amendment he wanted to table. I will come back to that point.

Having heard the words of my noble and learned friends Lord Mackay of Clashfern and Lord Clarke and my noble friend Lord Cormack, I will not get into the propriety or otherwise but will deal with the substance of the point. Harper’s law, which is the focus of the amendment, requires the imposition of a life sentence in cases where an emergency worker is the victim of unlawful act manslaughter. The intention of the amendment appears to be to restrict this to cases that involve an underlying unlawful act that is of a certain level of seriousness. My understanding is that it seeks to do so by excluding from the scope of Harper’s law those cases in which the unlawful act that underpins the unlawful act manslaughter of the emergency worker is one that, had the offender been convicted of that as a stand-alone offence, would have carried

“a maximum sentence of less than five years imprisonment.”

There is, I am afraid, real confusion as to what the amendment seeks to do. Noble Lords who enjoy it really ought to turn to page 4, line 39 of the Bill and remind themselves that this seeks to include an exception into Harper’s law. That is very important when one sees that in proposed new paragraph (c)(i) of the amendment there is a “not”, so it ends up with a double negative.

It seems to me that there are two interpretations of this paragraph and, from what the noble and learned Lord said, I am really not sure which interpretation he seeks to put forward. The first is—bear with me here—that it appears to except from that five-year maximum category, and therefore include within Harper’s law, cases in which the death was

“caused by dangerous driving or driving when under the influence of drink or drugs,”

even if the maximum penalty for the unlawful act offence was less than five years. If that is the case, it is not clear why that should be if the main thrust of the noble and learned Lord’s argument is that Harper’s law should not apply if the underlying offence carried a sentence of less than five years.

I also point out, as I am sure the noble and learned Lord knows all too well, that dangerous driving and the other driving offences here do not and cannot themselves form a basis for unlawful act manslaughter in any case, because that is the result of the decision in Andrews v DPP.

The alternative explanation of this form of words put forward by the noble and learned Lord is that the amendment appears to intend that where the unlawful act underlying the unlawful act manslaughter is one that in and of itself would attract a maximum penalty of less than five years’ imprisonment, that will be outside Harper’s law unless that act is accompanied by

“dangerous driving or driving when under the influence”,

which in the context of unlawful act manslaughter would be the circumstances that render the unlawful act dangerous.

I apologise to the House for subjecting it to a disquisition on unlawful act manslaughter but this is precisely the sort of point I would have discussed with the noble and learned Lord, had it been brought to my attention before I was halfway through my main course last night. More to the point, this would be an insertion at page 4, line 39 of the Bill; it would therefore go into proposed new Section 258A, which applies where

“(a) a person aged under 18 is convicted of a relevant offence, (b) the offence was committed … when the person was aged 16 or over”.

So, this amendment to Harper’s law, which is put forward on the basis of general principle, applies only to 16 and 17 year-olds. I did not understand from any of the speeches in favour of the amendment that the principle underlying those speeches was limited to 16 and 17 year-olds. The point was put on the basis that it ought to be of general application.

Why, I ask rhetorically, since the point has not been made, is this limited to 16 and 17 year-olds? Of course, the answer is obvious: it is not intended to be limited to 16 and 17 year-olds. Again, had this amendment been shown to me before halfway through my main course last night, I would have pointed this out, with respect, to the noble and learned Lord. What we have, therefore, is a late amendment, brought without any discussion with me or my colleagues, which fundamentally seeks to uproot the position taken by this House in Committee and on Report. It also suffers from fundamental uncertainty as to what it actually does, and the fundamental problem that it seems to apply only to 16 and 17 year-olds.

Quite apart from all of that, I simply do not see any merit in restricting Harper’s law in this way. We have already taken care to ensure that the provisions inserted by Clause 3 will apply only in cases of unlawful act manslaughter of an emergency worker who is acting in exercise of their functions as such a worker. Unlawful act manslaughter, as noble Lords certainly know by now, captures those cases where an unlawful act has been intentionally performed in circumstances rendering it dangerous, and that has caused death. It is the Government’s position that the unlawful act manslaughter of an emergency worker merits a mandatory life sentence. The seriousness of such conduct and the harm it causes both to the emergency worker—obviously—and to our wider society are evident. I respectfully see no reason to limit the sentence in the way this amendment appears to intend.

I come to the point made by the noble Baroness, Lady Kennedy of The Shaws—I respectfully congratulate her on 50 years in the criminal justice system—about discretion. There is, of course, a judicial discretion built in here; we have had this debate on several occasions during consideration of the Bill. Where the court considers that there are exceptional circumstances relating either to the offence or the offender that justify the imposition of a sentence other than life imprisonment, this could be done. I accept that some people want the exception to be broader, while some people may not want an exception at all, but that has been the Government’s consistent position throughout the Bill. I find it a little surprising that, at Third Reading, such a fundamental point is apparently up for discussion again.

Before I sit down—and I apologise to the House for delaying it—I come to the “one knock” case that the noble and learned Lord has put. If a person at a protest or demonstration were to hit a police officer who was then, for example, to fall over, hit their head and, God forbid, die, that could be captured under Harper’s law if it amounted to unlawful act manslaughter. Why is that? The reason is that what has happened here is not a simple case of battery. Under the offences made out here, the offence for which the offender would be sentenced is unlawful act manslaughter, and the Government believe that that crime, when done against an emergency worker acting as such, merits a mandatory life sentence other than where there are exceptional circumstances.

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Moved by

[Lord Wolfson of Tredegar]

3: After Clause 136, insert the following new Clause—
“Imprisonment for public protection etc: duty to refer person released on licence to Parole Board
(1) Section 31A of the Crime (Sentences) Act 1997 (imprisonment or detention for public protection: termination of licences) is amended in accordance with subsections (2) to (6).(2) In subsection (2)(a), after “Chapter” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(3) For subsection (3) substitute—“(3) Where—(a) the prisoner has been released on licence under this Chapter (whether or not the prisoner has subsequently been recalled to prison under section 32);(b) the qualifying period has expired; and(c) if the Secretary of State has made a previous reference of the prisoner’s case under this subsection, the period of twelve months beginning with the day of the disposal of that reference has expired,the Secretary of State must refer the prisoner’s case to the Parole Board under this subsection.”(4) In subsection (4)—(a) in the words before paragraph (a), for “an application” substitute “a reference”, and(b) in paragraph (b), for “application” substitute “reference”.(5) After subsection (4) insert—“(4A) A reference under subsection (3) must be made, and a reference under that subsection must be determined by the Parole Board under subsection (4), even if at the time of the reference or determination the prisoner is in prison having been recalled under section 32.(4B) If at the time of the determination the prisoner is in prison having been recalled under section 32—(a) subsection (2) does not apply, and(b) subsection (4)(a) has effect as if it required the Parole Board—(i) to determine whether it is satisfied that it is not necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventative sentence or sentences, and (ii) if it is so satisfied, to direct the Secretary of State accordingly.(4C) Where the Parole Board gives a direction under subsection (4B)(b)(ii)—(a) if at any time the Board directs the prisoner’s release under section 28, that section has effect in relation to the prisoner as if, in subsection (5), for “to release him on licence” there were substituted “to release the prisoner unconditionally”, and(b) if at any time the Board directs the prisoner’s release under section 32, that section has effect in relation to the prisoner as if, in subsection (5), for “immediate release on licence” there were substituted “immediate unconditional release”.”(6) In subsection (5), in the definition of “the qualifying period”, after “on licence” insert “(whether or not the prisoner has subsequently been recalled to prison under section 32)”.(7) Subsection (8) applies to an application made by a person under section 31A(3) of the Crime (Sentences) Act 1997 before this section comes into force.(8) If the application has not been determined when this section comes into force, subsections (4) to (4C) of section 31A of the Crime (Sentences) Act 1997 apply in relation to it as if it were a reference of the person’s case by the Secretary of State to the Parole Board under subsection (3) of that section.(9) Subsection (10) applies if a person remains on licence under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, or remains subject to release on licence under that Chapter, following—(a) the disposal before this section comes into force of the person’s application to the Parole Board under section 31A(3) of that Act, or(b) the disposal under subsection (4) of section 31A of that Act, as it has effect by virtue of subsection (8) of this section, of the person’s application to the Parole Board under subsection (3) of that section.(10) Subsection (3) of section 31A of the Crime (Sentences) Act 1997 applies in relation to the person as if the application had been a reference of the person’s case by the Secretary of State to the Parole Board under that subsection.”Member’s explanatory statement
This amendment and the amendments in the name of Lord Wolfson of Tredegar at page 133, line 13, page 135, line 13 and page 233, line 33 give effect to an undertaking given by Lord Wolfson on 15th December 2021 (Hansard col. 359). This amendment imposes a duty on the Secretary of State to refer the case of a person who is serving a sentence of imprisonment for public protection (or the equivalent youth sentence), and has been released on licence, to the Parole Board after ten years and annually after that.

[Lord Wolfson of Tredegar (Con)]

My Lords, following my commitment and undertaking to the House on Report, I am pleased to be able to bring this package of amendments relating to imprisonment for public protection—IPP—before the House this afternoon. I thank sincerely the noble Lord, Lord Blunkett—and I understand why he is unable to be in his place today—the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, and my noble friend Lord Moylan for their commitment to this cause and continued engagement with me on this matter. We have had a series of meetings and calls, which have been invaluable. They offered me their considerable wisdom and experience both of this subject and of this House in order to get this amendment—if I may put it this way—across the table and over the line.

It was made very clear at all stages in this House that there was enormous strength of feeling that some beneficial change for IPP offenders was both right and necessary. I am pleased that we have cross-party support for this sensible, proportionate and effective change that will provide such benefit but at no risk to public protection.

I committed on Report to bringing forward an amendment which puts the Secretary of State’s policy of automatic referral of applications to terminate the IPP licence on to a statutory footing. This would enable all eligible IPP offenders to be referred to the Parole Board for consideration for licence termination at the appropriate time. The new clause that I have tabled delivers on this commitment.

The position is that Section 31A of the Crime (Sentences) Act 1997 sets out how IPP offenders are currently able to apply for licence termination. Once the qualifying period of 10 years has elapsed—that is, 10 years from the offender’s first release by the Parole Board—this section provides that offenders can apply to the Parole Board to be considered for licence termination. In practice, the Secretary of State has made it policy to do this on the offender’s behalf, but first had to obtain consent from the offender.

The principal change in the first of the amendments in my name is in new subsection (2), which amends the wording of Section 31A so that the Secretary of State will be legally required to automatically refer the offender where the 10-year qualifying period has expired. Where the offender has previously been referred to the Parole Board for licence termination, they will automatically be referred if 12 months have elapsed since the previous reference. That removes the need for the offender to give permission for the Secretary of State to make applications on their behalf, and will enable the IPP licence to be brought to a definitive end for more offenders.

The clause also adds a new subsection to Section 31A which deals with offenders who are in custody following recall under the IPP licence. When an offender is recalled to prison, their licence is automatically revoked, so they cannot have their licence terminated while they are in prison following recall because they are no longer on licence. But, in these cases, the Secretary of State will still be required to refer the offenders to the Parole Board on the point of eligibility and every 12 months thereafter. The Parole Board will then determine whether the licence should remain in force following any subsequent release decision. It will be up to the Parole Board whether to terminate the licence of an IPP offender in custody—but these provisions are specifically intended to ensure that all eligible IPP offenders, who are either on licence or have been recalled and had their licence revoked, have the opportunity to have their licence terminated.

The remaining subsections are technical, transitional and clarificatory to ensure that the clause works correctly. But I make it absolutely clear from the Dispatch Box that time spent in custody on recall does not affect the running of the 10-year qualifying period. There are two further amendments in my name, both of which are consequential. I am grateful to the noble and learned Lord, Lord Judge, for joining me in them. The second amendment ensures that this clause operates correctly with other subsections that might prevent a referral, and the third sets the commencement date at two months following Royal Assent.

Taken as a package, these amendments appropriately balance the need to protect the public with ensuring that IPP offenders who are assessed by the Parole Board as no longer posing a risk to the public are given every opportunity to have their IPP licence, and the IPP sentence as a whole, terminated. So, with renewed thanks to those noble and learned Lords who joined me, particularly in supporting the first amendment, for their sustained engagement, I beg to move Amendment 3.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, my noble and learned friend Lord Judge has asked that I go next. I have indeed added my name to the first substantive government amendment, but I indicated that I would—and I do—make it plain that I do so without any great enthusiasm. Rather, it is on the basis that one must be grateful for small mercies—here, alas, I put the emphasis on the “small”.

I am grateful to the Minister for doing what he could for us, and, so far as it goes, I welcome the small change brought about by the amendment. But, in my respectful view, it does not go remotely far enough. It is difficult to overemphasise how small a concession this is in relation to the overall problem of the remaining IPP prisoners. Even in respect of the recall prisoners, we had hoped that the maximum term for which a licence should remain in force would be reduced from 10 years to five.

Beyond that, I fervently hoped to do something for the 1,700-odd cohort of IPP prisoners who have never been released and who remain incarcerated 10 years after this whole sentencing regime was abolished by LASPO in 2012. Many of the 1,700 are substantially more than 10 years beyond their tariff term—but there it is. We now have to—and we do—put our faith in the House of Commons Justice Committee, which has taken evidence and listened to many, including me, and is shortly to report on the whole question of this remaining regime. One hopes that it will do something to meet this grave, continuing and, indeed, growing injustice. In the meantime, I make it plain that I support this most modest of amendments.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too would like to echo the thanks for the Minister. He has, in a sense, been a lobbyist within the Ministry of Justice to get this modest amendment over the line. The noble Lord, Lord Moylan, summed up the position very well when he described it as the first crack in the wall. I was alarmed by the figures he quoted from his Written Question, where he seemed to indicate that there would be more prisoners in jail because of recalls, so the problem is likely to get worse and not better.

The noble Baroness, Lady Burt, referred to the Minister’s reference to Newton’s second law—that it is easier to move an object that is already in motion. My first degree was in physics, and I would phrase that slightly differently, in a way that is relevant to the politics: the rate of change of movement is proportional to the impressed force. We on this side are certainly interested in increasing the impressed force on this object which is currently under way.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the kind words a number of noble Lords have said. This may be a modest start, but it is a start, and I am sure that the conversation will continue. In particular, as I said when we discussed this matter substantively, I am well aware that the Justice Select Committee is looking at this matter. It will be reporting soon and, while I cannot go quite as far as my noble friend Lord Moylan would want me to by saying that, if the committee recommends, for example, changing the qualifying period from 10 years to five years, the Government will adopt it, I can say—which I hope would be obvious anyway—that we will take anything that comes out of the Justice Select Committee extremely seriously and look at it with very great care.

The action plan has been provided to the Justice Select Committee. We will review it again following the publication of its report to take account of our consideration following its recommendations. I hope the House will forgive me if I do not respond to everybody who contributed. I am conscious that we are at Third Reading and there is other business before the House. But I thank everybody who has contributed to this short debate. In particular, I respectfully thank the noble Baroness, Lady Burt of Solihull, for our conversations and the correspondence we have had, which she knows I have been dealing with.

I am conscious that Newton has now been invoked on a number of occasions. I am not altogether sure whether Newtonian physics applies to government action, but I will proceed on the basis that it does. I will try to push things as far as I can, but for present purposes, the only things I will immediately seek to move are these amendments.

Amendment 3 agreed.

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Moved by

[Lord Wolfson of Tredegar]

4: Clause 142, page 133, line 13, at end insert—
“(3A) Subsection (3) does not apply to a reference by the Secretary of State under section 31A(3).”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It disapplies section 33A(3) of the Crime (Sentences) Act 1997 (inserted by Clause 142) in relation to a reference by the Secretary of State under section 31A(3) of that Act.

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Moved by

[Lord Wolfson of Tredegar]

6: Clause 209, page 233, line 33, at end insert—
“(ma) section (Imprisonment for public protection etc: duty to refer person released on licence to Parole Board);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 136. It provides for that Clause to come into force two months after Royal Assent.