Judicial Review and Courts Bill (Second sitting)

Marco Longhi Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Q Much has been said about the importance of having people present when looking into such an important matter, which I understand, but there is an accessibility issue. One thing we have learned throughout the pandemic is that many people have had the advantage of accessibility and the ability to attend. Would it not be a real advantage, in some instances, to have a hybrid performance, so you could retain the formal court setting, with people both present and remote, if required?

André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.

[Marco Longhi (Dudley North) (Con)]

Q I have a question for Mr Rebello. What is your view on coroners having the power to hold inquests without a hearing, particularly in non-contentious cases?

André Rebello: I have no problem with that proposal, that being another tool in the bag, as and where it is necessary, that is needed. My own preference is to go into court and record the hearing that I would have had, so that people can apply for a copy of what has been received and they can actually hear what has occurred. Certainly, it takes a lot longer to write down a considered decision than to go into court, go through the evidence orally and speak to it. Something that could take me five to 10 minutes in court, could take me an hour and a half to write down the issues, the law being applied, the rulings, the findings, determinations and conclusion, and then all the reasons which you would need for a considered judgment. That would be far, far more time consuming and may well take up far more coroners’ time. I appreciate not all coroners have access to courts all the time, and they cannot just go into court, so this is a very useful proposal, which I am sure will be used as and when needed.

[Tom Hunt (Ipswich) (Con)]

Q We understand that the Chief Coroner will be providing guidance to coroners on the proposed five measures in the Bill. Do you think that that will ensure consistency of practice across coroner areas, given that coroners are independent judicial office holders and that judicial decisions are for them to make?

André Rebello: Absolutely. We should bear in mind that coroners are judges like any other judge, and every judge is an independent judicial office holder. No other judge, other than a properly constituted appellate court, can tell another judge how to decide something or do something. However, it is important to have guidance to ensure consistency not only between coroners, but internally for each coroner. What you have to bear in mind is that every coroner determines the facts of the case on the very facts that are before the coroner. No two cases are actually the same. If the Chief Coroner is minded to issue guidance, that can only help to make these things work.

When you look at the provisions, the ability to merge coroner areas is something that has been long needed, because at the moment you can only merge unitary authorities, not parts of those authorities and that has delayed the coroner reform project. It is sensible that the disapplication of reportable deaths under covid continues because we are not out of the pandemic. On remote hearings, we should be brought in line with the Courts and Tribunals Service, with some guidance to ensure consistency, so that that facility is used where necessary, but not overused, because the rule of law and open justice is very important and people should be able to attend to see justice being done.

As we have just discussed, written inquests, without going into court, will have their need when coroners are struggling to get a court. The ability to discontinue cases when we have not ordered a post-mortem is long over needed. Occasionally, we will have a GP abroad who knows the cause of death and there is no one else qualified to give a cause of death. The only way the coroner could open up the facility to discontinue that case would be to order an unnecessary post-mortem. The proposal will enable coroners to open an investigation and when the GP returns, to discontinue and have the death registered.

That does raise another issue that the Bill does not cover, and I am sure that Members will be aware that the sunset clause in the Coronavirus Act 2020 expires in March next year. The law used to be that a doctor had to treat a patient in his or her last illness and, relying on regulation 41 of the births and deaths regulations, had to have seen the patient within 14 days of death, or seen the body after death. The Coronavirus Act gave an easement, enabling 28 days to be used, whereby any doctor had seen the patient and any other doctor could see the body after the death. It looks as if that part of the Coronavirus Act will expire before Parliament has a chance to bring into force the medical examiner and death registration provisions. There will be a big lacuna in the work coroners are carrying out. If doctors are not seeing patients face to face and cannot issue death certificates, far more cases will be unnecessarily reported to the coroner. If there is any way to continue that coronavirus easement on death certification, it would be greatly appreciated, particularly by the bereaved.

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[The Chair]

Marco Longhi, followed by the Minister. You have five minutes, so a very quick question from yourself, Marco.

[Marco Longhi]

Q Mine is a question of consistency. There are no other aspects of the law, whether it be the public or private realm or whether it be employment law, family law or local government, in which applicants have more than two bites of the cherry, but it is immigration, and immigration alone, that seems to fall into a special category in which they have a third bite of the cherry. How can this be justified in a point of consistency?

[The Chair]

Just one of the panellists. Who wants to take it? They do not look willing. Are you directing it at anybody in particular?

[Marco Longhi]

Dr Tomlinson.

Dr Tomlinson: I would point out that Cart judicial reviews are not just immigration cases. While the caseload is made up mostly of immigration matters, they are not necessarily all immigration cases. My view would be that there are lots of different appeal routes and mechanisms across the justice system and in different areas of the justice system. As I said earlier, there can be reason for disagreement about that, but in my view the Supreme Court in Cart got the question right, and I think its reasoning was correct that the procedure that is potentially open to review in a Cart judicial review is one where there needed to be a limited—I stress limited because the Supreme Court made it limited—scope for review, and that has proven to be a relatively successful and cheap way of picking up important errors that affect people’s lives.

[James Cartlidge]

Q Going back to the question from the hon. Member for Lewisham East, about the England and Wales measures in terms of magistrates courts and so on, on the point of the principle of access to justice and technology, which is important for this Bill, there was an emphasis in some of the evidence that we heard earlier that having online procedures is negative for access to justice in many ways. However, from what Aidan O’Neill said earlier and the experience of the pandemic, particularly in England and Wales, technology is important for keeping access to justice. Would you agree that the expedited development of technology that was necessary because of the pandemic has improved access to justice, while we do need to have safeguards in place?

Judicial Review and Courts Bill (First sitting)

Marco Longhi Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Janet Daby]

Yes, that is fine.

[Marco Longhi (Dudley North) (Con)]

Q I am glad you mentioned immigration and asylum a few moments ago, because back in 2004 the Labour Government tried to remove judicial review by using a very broadly worded ouster clause. Does this not suggest that removing Cart JR, with a tightly worded ouster clause, is in fact just a moderate and proportionate step?

Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it.

Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.

[Marco Longhi]

Thank you. I am glad that you referred to the words “less extreme” in your commentary.

Professor Feldman: I agree with what Dr Morgan said.

[James Cartlidge]

Q I was very struck by the point from Professor Feldman about resource and proportionality in relation to the Cart judicial reviews. He made the point about the 3.4% success rate being very low compared with estimates of success. I am not sure that that is necessarily definitive. You suggested 50% for what we might call other JRs. The average number of judge days used on these cases is something like 180 days of what is, after all, the High Court judge’s time, so your point on proportionality is important in terms of resource—albeit the legal considerations are very important as well. Currently, we as a Government, who are accountable for resources, are faced with this covid-related backlog, particularly in the Crown court but in other parts of the courts as well. Given the average number of judge days, would you agree that currently the resource issue is even more important to take into account?

Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure.

The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one.

Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading:

“Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.]

In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation.

That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.

Judicial Review and Courts Bill (Third sitting)

Marco Longhi Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter]

My hon. Friend has put her finger on the main objection, but it is not the only objection. It will cause a great deal of confusion, and I do not think the courts will like it. They will therefore try to find ways around it, as courts tend to do in such circumstances, and there will be uncertainty over whether something was lawful, and whether it was lawful for all purposes. Again, I will come on to those issues, but this just opens cans of worms. The Government also assert that this is a simplifying and clarifying measure, but it will have exactly the opposite effect.

[Marco Longhi (Dudley North) (Con)]

I take issue with the hon. Member’s characterisation of how the courts may work under the new jurisdiction of the Bill, when it is enacted. He also mentioned the expert advice that we heard the other day. Jason Varuhas, professor of law at the University of Melbourne, stated:

“I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 10, Q6.]

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[Marco Longhi]

It is a pleasure to be able to follow the hon. Member. Colleagues will be pleased to know that I will be trying to hold their attention for only about three or four minutes.

I am certain that the hon. Member will have regard for the assertion by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), that the Bill is a power grab by Government. Would he not agree that that is an odd thing to say, given that the Bill provides the courts with additional powers around remedies in a way that ensures practicality and efficiency, and enables courts to give consideration to the effect of remedies in a way that is not readily applied in the current framework? That surely serves to evidence the shadow Secretary of State’s lack of understanding of what our courts actually need and of the flexibilities built into the Bill. As the Minister said on Second Reading, far from weakening quashing orders, as the shadow Secretary of State said, these new remedies

“strengthen quashing orders and thereby strengthen judicial review.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]

On prospective remedies, I would like to give two examples that show that this concept is not new but has precedence in our legal system. Judges have limited the retrospective effect of quashing orders in some instances in the past, such as in R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015. Therefore, these remedies do not change the position of judges but act to encourage a wider use of the new quashing order modifications.

It is important to state that these remedial modifications are not being pursued to bypass Parliament but are in fact focused on resolving practical issues that arise during judicial review cases. The concept of prospective-only orders is not novel or unique. Under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, courts in the devolved Administrations have a power to make such orders where decisions are outside devolved competence. The Government wish a similar concept to be available in all cases of judicial review in England and Wales.

[Anne McLaughlin (Glasgow North East) (SNP)]

May I point out that there is no presumption in any of the devolved legislation, and that is primarily what we are arguing about here? It is not about having the ability to do this; it is about the presumption that it has to be a default position.

[Marco Longhi]

Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.

These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.

I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).

In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.

We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.

Judicial Review and Courts Bill (Fourth sitting)

Marco Longhi Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter (Hammersmith) (Lab)]

Welcome back to the afternoon sitting, Sir Mark. I can reply fairly briefly to this short debate.

The hon. Member for Dudley North said that a power grab by the Government was not what was happening in this Bill. However, whatever language is used, the Bill does alter the balance of power. In that sense, it is a movement of power from the courts to the legislature, for reasons I will explain more under the next group of amendments. He said that it adds powers to the judge’s armoury. Technically that may be true, but if the net effect in reality is to create uncertainty and fewer protections for claimants, that is not a welcome development.

[Marco Longhi (Dudley North) (Con)]

The hon. Member referred earlier to his leftie lawyers. In describing them in such a way, he is implying that he does not have confidence in these people doing the right thing. What we are doing is giving them the ability to use their discretion.

[Andy Slaughter]

I think it is actually the senior judiciary, and I would never ascribe any political motivation to them whatsoever. I take the point that the Deputy Prime Minister may well not be a leftie lawyer, but it is the Prime Minister, I think, who coined the phrase rather than me. I do not know who he had in mind exactly; I hope not the former Prime Minister, Lady Thatcher, but there it is. People move around the political spectrum all the time these days.

The main issue I take from what the hon. Member for Dudley North said is that there remains an element of discretion. Up to a point, Lord Copper, is the answer to that. Why have a presumption at all? We are coming on to that debate, so perhaps we went off at a slight tangent a few moments ago, but it is a relevant point to make. If Government Members wish to emphasise the discretion that is available to judges, why are they supporting a clause that inserts conditions?

Judicial Review and Courts Bill (Eleventh sitting)

Marco Longhi Excerpts

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

[Sir John Hayes (South Holland and The Deepings) (Con)]

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

[Marco Longhi (Dudley North) (Con)]

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

Judicial Review and Courts Bill

Marco Longhi Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[Sir John Hayes (South Holland and The Deepings) (Con)]

I rise to speak on new clauses 8 and 9, which stand in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt).

Those who served on the Bill Committee will not be unfamiliar with the arguments I intend to address, as we rehearsed them at considerable length in Committee. The Minister knows well my general concerns about the Bill: while it is a good start in dealing with the pressing issue of judicial review and how that has been distorted by recent judicial practice, it is only a start. We need much more wide-ranging reform of judicial review and, indeed, much more wide-ranging reform of the relationship between this House and the judiciary, as set out in the Attorney General’s recent speech in Cambridge on judicial activism.

New clause 8 addresses the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000, and especially in circumventing the role of the investigatory powers tribunal. I take a particular interest in that, having been the Minister at the Home Office who introduced the Investigatory Powers Act 2016, which deals with the necessary precautions and safeguards associated with the storage and retrieval of electronic data. Indeed, the Bill I took through the House introduced the double lock: all warrants, as well as being dealt with by the Home Secretary, are, as an additional safeguard, dealt with by a judicial commissioner. That safeguard was to ensure the core principles of proportionality and necessity, which lay at the heart of all considerations of that kind.

The problem is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in context. The supremacy of Parliament is fundamental to protecting the interests of the people. Parliament’s role in our constitutional settlement is not—as was suggested in an evidence session with Aidan O’Neill QC—a matter of neutrality.

[Marco Longhi (Dudley North) (Con)]

Does my right hon. Friend agree that the events of Brexit showed the vivid importance of always maintaining the sovereignty of this place and respecting the will of the people?

[Sir John Hayes]

Absolutely. The separation of powers does not deal with neutrality. It deals with different powers, which are, by constitutional arrangement, held by the courts and this place. The relationship between the two is critical. It is critical to our considerations today and more critical still to our constitution. A. V. Dicey argued that the separation of powers confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together. Therefore, as Dicey says:

“The principle of Parliamentary sovereignty means neither more nor less than this, that Parliament… has… the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

That is precisely the point that my hon. Friend makes.

We need to reaffirm that principle in general and the Bill is an opportunity to do so. Any Parliament that makes a new law or repeals a law will be obeyed by the courts. That is fundamental to the role of this place. All of us who represent the people, as my hon. Friend says, have a duty, not just a mission, to reflect the will of the people.

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[Marco Longhi]

Tributes should be paid to the judges and legal professionals who have kept our courts operational during the pandemic to the best of their ability, using technology to do so, much as we have during the last two years. It must be our priority to break through the backlog in the criminal courts, partly caused by the pandemic. Just yesterday, I received details of an awful assault in 2019 in my constituency that will be heard in court only in 2023. That delay prevents victims from receiving justice in a timely manner, does not allow closure and can delay access to the Criminal Injuries Compensation Authority.

The Bill Committee, of which I was a member, heard evidence from specialist witnesses that implementing the Bill would save time and make our courts more efficient and effective. If I have learned anything during the pandemic, however, it has only entrenched my belief that the Opposition seek to hold us back: they voted against the Bill, they have just said that they will do so again, and they claim that there is no need for reform of judicial review. As with everything they do, there is dithering and delay. Our justice system and our constituents would be far worse off if they were in charge.

There is no area of the law that allows individuals, families, local government, business and so on to have more than two bites of the cherry in court—with one exception, namely illegal immigration appeals. That is another reason why the Opposition disagree with the Bill: because they are quite happy for the country to continue being a magnet for illegal immigration. When challenged in Committee, not once did an Opposition Member explain why illegal immigration should benefit from a third bite.

The Bill includes provision to ease the backlog in criminal courts and introduces measures to reduce the strain on magistrates courts. It also introduces a new online common platform, which will allow those who so wish to conduct all pre-trial proceedings online. Just as our parliamentary activities have benefited from being supplemented by virtual alternatives—I emphasise that they have been supplemented, not replaced—so can our legal sector benefit.