Judicial Review and Courts Bill

Robert Neill Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Dominic Raab]

My hon. Friend makes a powerful argument. I have not heard the Factortame case cited in this House for some time—to the relief of some.

Of course, there are many other contexts beyond counter-terrorism—from infrastructure projects to health and safety regulation—where the use of a suspended or prospective quashing order would lead to a better outcome, allowing both essential judicial accountability and good governance at the same time; those two aspects can and should go hand in hand. Dare I say it, these reforms may have the welcome effect of making our system just a little less adversarial by giving the Government and this House the opportunity to respond swiftly but in a considered manner, rather than effectively being tripped up—sometimes at great cost to the taxpayer and at other times at potential risk to the public.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Perhaps the Secretary of State and Lord Chancellor could help me on two matters. When these matters of suspended quashing orders are being worked out, will he ensure that no litigant who has succeeded and has suffered tangible loss is left without an effective remedy? That will be important, outwith any other considerations that might very properly be taken into account. I also gently say to him that he has clearly been absent from justice debates for a little while—and we welcome him back—or he would surely have known that my hon. Friend the Member for Stone (Sir William Cash) never misses an opportunity to raise Factortame when we talk about topics of this kind; he has managed to do so in this debate as well.

[Dominic Raab]

I can give my hon. Friend, who chairs the Justice Committee, the reassurance that he is looking for. If he looks at clause 1(8)(c) and (d), he will see that

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

and those

“who have relied on the impugned act”

are material considerations for the court to consider.

--- Later in debate ---

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to participate in the debate and to follow the two Front Benchers. I welcome the Lord Chancellor and Secretary of State to the Treasury Bench, and thank him for the very generous and accurate tribute he paid to my right hon. and learned Friend the Member for South Swindon (Robert Buckland), whose conduct in office was of the very highest. I also welcome the hon. Member for Hammersmith (Andy Slaughter) to the Opposition Front Bench. He is a great loss to the Justice Committee, but very much the Opposition Front Bench’s gain. I look forward to seeing him in his reincarnated capacity. This is proof, I am glad to see, that the Labour party believes in recycling, and doing it in a good way, in this instance. If it is any help, I was recycled by David Cameron once—it happens to all the best, I promise. I am delighted to see the hon. Gentleman there.

This is an important Bill and, in fairness, a measured and tightly focused one. One might not have thought that from some of the things we have heard, but that is the reality. Again, that is in no little measure due to the focus of my right hon. and learned Friend the Member for South Swindon, the principal author of the Bill. I welcome the fact that he did that, and the fact that the Lord Chancellor has adopted the same approach to the Bill.

There were a great deal of noises off around what might or might not happen on judicial review, and I am glad that the course was sensibly adopted of having an independent review panel, chaired by an eminent Queen’s Counsel, the noble Lord, Lord Faulks, who is a distinguished Member of the other House and who, as I think everyone conceded, had approached his duties as a Justice Minister with exemplary fairness and impartiality, was respected by both sides, and had many years of practice in the field. He led a panel of experts who were also distinguished in the field, and they produced a measured report, for which the whole House should thank them.

That report was a great public service, and it is right that the Government have essentially built on the recommendations that the panel made, and the fact that the panel did not regard the judicial review as a major problem, but suggested sensible ways forward, is not something to be held against them. That seems to me exactly what one can expect if people follow the evidence, which is precisely what the panel did and what the Bill also does.

It is important to recognise that judicial review is an important factor in our constitutional arrangements. When I started as a law student in the mid-’70s, judicial review in its modern concept was in its very early stages of development. The late and lamented Professor de Smith was still alive and had produced the first of his two textbooks, but the subject was still largely taught in terms of the old prerogative writs of mandamus, prohibition and certiorari.

A lot has have moved on from then, and we have developed a much more sophisticated and wide-ranging corpus of administrative law. That is not of itself a bad thing, because it reflects the reality that, as I think the late Lord Hailsham of St Marylebone once observed, in the post-war years we have grown a regulatory state. Therefore, the actions of the state and of public bodies—state agencies, local authorities, hospital boards and a raft of others—impinge on many areas of citizens’ lives. That is not necessarily a criticism, but there are greater interactions between the state and its various agencies and the lives of its citizens.

There will be impacts there, and by the nature of the human condition, errors will be made by decision makers. It is perfectly reasonable that we have seen that, but, as has been observed, there has been an exponential growth—I think that was the phrase used—in judicial review. That is worth bearing in mind, because it has sometimes come at the cost of complexity in administrative law.

Lord Justice Haddon-Cave delivered a very useful lecture, the Gresham lecture, in June this year, which reflects wisely on the balances there: the fact that the growth of judicial review is not of itself a bad thing if it gives remedies to those who are wronged, versus the fact that in some areas of the law—the concept of Wednesbury unreasonableness and lawfulness being one—that has led to a degree of complexity. As Professor Richard Ekins of the University of Oxford has observed, that in turn can, in the fields of lawfulness, voidability of decisions and so on, lead to uncertainty. In so far as, according to the Bingham test of the rule of law, we want to see clarity and accessibility of law, we also want wherever possible to see certainty. Nothing can be an absolute in this world, but that is a reasonable objective, and I think the Bill seeks to strike a balance.

What the Bill is not, in fairness, is an assault on judicial review. It is unfair to characterise it as such in every respect; I would not support the Bill if it were, nor do I think that any Conservative would. The truth is that judicial review—the ability of the individual to seek redress against the actions of the state or its agents—is fundamental to the English concept of liberties. In his role as an author, the Secretary of State wrote about these matters before he came to the House, so he recognises that point, as do I and as does the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy).

Judicial review—I say this to the wider public as well as to colleagues—is in the DNA not just of our British constitutional arrangements, but of the Conservative party. The ability to challenge the actions of the state and its agents when they get it wrong is fundamental to our concept of limited government. Supporting judicial review is an entirely Conservative thing for the Government to do and, dare I say it, an entirely British thing, across all the jurisdictions.

[Joanna Cherry]

As usual, the hon. Member is making a very learned and well-informed speech, but I want to challenge his assertion that the Bill is in line with Bingham rule-of-law principles. The Bingham Centre for the Rule of Law has produced a detailed briefing on the Bill, which says that clauses 1 and 2 are not in keeping with the Bingham principles on the rule of law and should be removed from the Bill. What is the hon. Member’s comment on that?

[Sir Robert Neill]

I have great respect for the Bingham Centre for the Rule of Law, but I think that it is wrong—it is as simple as that. I have come to the view, as I think the independent panel did, that the two clauses are not in conflict with the rule of law. That is precisely the sort of area in which there can be legitimate debate. I have worked with the Bingham Centre on many occasions, as the hon. and learned Lady knows, but I do not think that its conclusion is justified on the evidence. I think that that point is borne out by referring to the conclusions of the panel in relation to clauses 1 and 2, which I will come to in just a moment.

We all believe in the importance of judicial review. It is regrettable if any side in political debate sees tension between Parliament and the courts, or between the Executive and the courts, as a bad thing. There is always an element of tension in any constitutional relationship. Sometimes a decision may not go in our favour when we are councillors, members of health authorities or Ministers —it happened to me when I was a Minister. We may not like it, but equally we have to respect the decision. I do not see anything in the Bill that changes that fundamental point at all.

I will address the judicial review aspects of the Bill first, although I do not want to forget the other aspects. What we are dealing with is two very limited and specific proposals; that is a dangerous phrase to use under certain circumstances, but I think it works quite well in this regard. In relation to Cart reviews, I must say—with respect to those who seek to uphold Cart—that I understand the point that in a tiny number of instances there might be success, but overwhelmingly they have not proved successful.

I commend to the House the observations of my hon. Friend the Member for Newbury (Laura Farris), who quoted Lord Hope. Of course there are others who argue to the contrary, but with all respect, I think that the views of a senior Law Lord who sat on the case in the Supreme Court and has said “We got it wrong” might carry just a little more weight than those of some other commentators. Certainly the conclusion of Lord Faulks’s panel was

“that the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued”,

so the Government have acted in line with their independent review and in line with the evidence.

I will make an additional point, which has already been posited, but which is important. Many who practise law would say that in truth there is an inherent illogicality in giving one particular class of appeal, as opposed to others, a third bite of the cherry on the merits, when a decision on the merits both of fact and of law has already been taken by the Upper Tribunal, a tribunal of equivalent status and standards to the High Court. That is not an appeal to a superior tribunal; it undercuts the jurisdiction of an equivalent court. With respect, there is no logic to that at all, so it seems to me that it cannot be said that there is anything objectionable in a modest amendment that relates to removing Cart litigation.

In relation to joint enterprise manslaughter, as hon. Members will recall, the Supreme Court used a phrase about the Court of Appeal taking “a wrong turn”. I think that this is an instance in which we can say—and Parliament is entitled to say, with respect—that the Supreme Court in Cart took a wrong turn, and that we are entitled as a matter of public policy, as is conceded to be Parliament’s prerogative in these matters, to reverse it in this limited measure.

May I also deal with the issue in relation to quashing orders? It does not seem to me that it can be objectionable to increase the suite of remedies available to the courts. There can be difficulty when quashing arises, and I do not say that this is a complete solution to it—I shall return to that in a moment—but I think it is worth quoting, in full, the recommendation of the independent panel:

“Accordingly, we recommend that section 31 of the Senior Courts Act 1981 be amended to make it clear that the courts have the power to make suspended quashing orders in appropriate cases. This could be done through the insertion into section 31 of a new subsection (4A), which would read, ‘On an application for judicial review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period.’”

That, broadly, is the scheme which the relevant provisions in the Act follow. They follow the recommendation of the independent review, and I therefore do not think that there are any significant grounds for criticism in that regard.

The one question that I would raise about this—and I posed it in my intervention earlier—relates to ensuring that when we consider the way in which the statutory presumption which underpins this is set out and is then put into force in practice, we do not allow the individual litigant who has suffered tangible loss as a consequence of an impugned decision to be left without a genuine and meaningful remedy. A future declaration of illegality will not of itself recompense a person who has lost a business, lost an opportunity or lost employment, or something of that kind. Provided that this is applied in a way that ensures that that person does not lose out, I do not think that there is anything objectionable here.

There will be some who are parties to litigation and wish to see a change of policy rather than the question of having suffered individual loss, but I should have thought in those cases, the suspended and future quashing orders are perfectly legitimate and proportionate. It is the need to deal with the individual who has lost out against the state that I think we need to safeguard, and I hope the Minister will confirm that that will be done. I am grateful to the Secretary of State for having done so in response to my intervention. That, I think, is the key test.

Another point might be worth bearing in mind. Again, I refer to the helpful paper published by Professor Ekins this morning. This is a path that the Government are not going down, but I should like to know whether there will be some scope for the deferring rather than the suspending of a quashing order. There are circumstances in which that might enable remedies to be applied without some of the difficulties that could arise from uncertainty. I do not say that that is right, but it is worth looking at the paper from Professor Ekins, because it posits some modest amendments that may be worth considering at a later stage in the Bill’s progress. I do no more than float the idea. As it is, however, I see nothing that can be regarded as in any way an assault on judicial review in the first part of the Bill. These are sensible and modest reforms—and reform is not the same as an attack; reform is exactly what we do to keep law up to date.

Let me now turn to the remaining parts of the Bill, starting with criminal procedure. It seems to me that there is nothing wrong with modernising procedure; technology changes, and we all learn. The shadow Secretary of State and I practised in criminal law for much of our careers—as, indeed, did the shadow Minister—and in our time we have all seen procedure change out of all recognition in some respects, often for the better. I think we all agree that serious sexual offences, for example, are handled much better now than they were when we started off in practice at the Bar. In particular, claimants get a far better deal. That is just one example, but I can think of other safeguards that have been built in—the Police and Criminal Evidence Act 1984, and a raft of other measures—and have acted to prevent abuses against defendants in the course of investigations.

Procedure can always be improved, and we ought always to be able to take advantage of technology, as we do with video-recorded evidence and so on. Again, there is nothing objectional about that in principle, and I do not think there is any harm in greater flexibility either. Easy movement between the courts can certainly save time. However, I ask the Government to bear in mind that that needs to come with appropriate safeguards.

My concerns about this have been well set out in the Bar Council’s briefing. For example, when moving from in-person proceedings—which at the moment are often remote proceedings—to a written procedure for certain types of offence, safeguards will be needed as to what precisely the specified offence is going to be. An example that the Justice Committee has highlighted in previous reports is that of a young person who has foolishly committed an act and who enters a guilty plea or accepts a caution, which is recordable. That plea is recorded and then, years down the track, because of the way our criminal records system currently works, they find that it is a serious obstacle to employment or educational opportunities that goes way beyond anything they had contemplated when they entered the guilty plea, perhaps to get it out of the way, at the time.

I am concerned that these categorised offences should not involve anything that is imprisonable, and I also suggest that we should not use the provision for anything that is recordable. I can see that in certain types of offence, such as the non-payment of the television licence fee, this could certainly speed things along, but there needs to be a safeguard for anything that is likely to have an effect on someone’s character, reputation or future life chances. The safeguard is surely that we ensure that an informed decision has been made, which must imply access to legal advice before the decision to enter an online guilty plea is made.

We all know that criminal proceedings are often dynamic and that things come to light as we go along. That can happen with the disclosure of material online as much as in person, and there must be a specific provision to withdraw a guilty plea at an appropriate time if it becomes apparent that an arguable defence could be raised. That seems to be a fair balance, and it needs to be specifically written in, either in the legislation or in regulations. I hope that the Ministers will undertake, at the very least, to reflect that in regulations; that is probably the most constructive way, rather than changing the primary legislation.

We also have to look at one or two anomalies. I note, for example, that in relation to the provision for online procedures, the trigger age relates to someone over the age of 18. However, in clause 4, which deals with

“Guilty plea in writing: extension to proceedings following police charge”,

subsection (3)(b) states that the provision shall apply where

“the accused had attained the age of 16 when charged”.

I do not see the logic in that, so perhaps the Minister can help me when he responds to the debate. What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future. It is not the principle that I object to; I am just concerned that we get those safeguards in place.

While I am on the subject of criminal procedure, I must point out that modernisation is fine and has its place, but what happens tomorrow in the Budget is as important as anything else. I am all for making the best possible use of scant judicial resources and time, but none of the proposals compensates for the proper funding of the courts system. Sadly, we have a legacy of decades of underfunding—under Governments of all colours, let us be blunt. There is no party point to be made here. Under all Governments, the courts system has not been funded to the level it requires, and I hope that the Secretary of State will use his important position within the Government to take forward the ambitious spending bid that his predecessor talked about. If he does that, he will have my support and that of many others on both sides of the House. Investment in justice is investment in the fabric of society, and that is good for us all in the long term. That is a slight digression, but I hope I will be forgiven for raising it in the circumstances.

I now turn to the remaining provisions. Moving tribunals across makes sense. Many people who practise in the tribunals would say that it is about time that tribunals were not regarded as slightly out on a limb and as a bit of a poor relation. A closer alignment will be beneficial for their interoperability. For example I noted during the pandemic that some tribunals’ rule systems, not being the normal Supreme Court rules, lagged behind the courts in adapting to online hearings, so the change can only be beneficial.

I wish the Government had gone further and adopted the recommendations of the Justice Committee’s report on coroners. As far as it goes, the change is well and good but there is a missed opportunity to which we can perhaps return in due course. There is nothing in the Bill to which I object, and I see the good sense in greater flexibility on certain types of hearing, but that is no reason for not being more ambitious in relation to coroners either in this Bill or in future legislation. As the Bill proceeds, I hope we will be able to look at that again, because the coronial system is important to the country and particularly to victims and bereaved families, and it operates with variability, if I might put it that way, across the country. The Select Committee’s well-reasoned proposals deserve more consideration than they have perhaps had so far.

There is an argument to be made about equality of arms, which is again about funding. Massive sums are not required to give the families of victims in complex inquests equality of arms with state agencies that do not appear on the other side in technical terms, because of the nature of a coroner’s inquiry, but in reality are making assertions that the families would rightly wish to challenge and explore. I hope the Government will reflect on that as a measure of fairness and equity.

This Bill has proved to be less controversial than it was flagged up to be, and it is the better for that. It is a sensible, conservative set of incremental improvements and proposals that are welcome and should be supported. Parliament, the judiciary and the Executive have important and equal functions in our system. The rule of law does not mean that every public action has to be subject to judicial review, but it does mean that judicial review should be sufficient, strong and robust enough to ensure that victims of injustice are recompensed.

It is also important that we who sit in this House and who operate in the political sphere recognise the integrity of the judiciary in their sphere. As Lord Faulks’s review concluded, we can trust that the judiciary will act properly, accordingly and fully within the limits of their powers, and we should respect that, as we can also be confident that they will respect us.

Judicial Review and Courts Bill

Robert Neill Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[James Cartlidge]

I will explain very shortly what impact we expect this to have on the delays, which my hon. Friend is quite right to raise.

Just to be clear, in the coming months, we will be extending magistrates court’s sentencing powers from a maximum of six months to 12 months imprisonment for a single triable either-way offence by commencing existing provisions in the Sentencing Act 2020 and the Criminal Justice Act 2003.

Extended sentencing powers will allow for more cases to be retained in magistrates courts, allowing these cases to be heard more quickly and with the intended effect of reducing the backlog of outstanding cases in the Crown court. Just to be clear, we estimate that this will save nearly 2,000 Crown court sitting days per year. Magistrates are also fully capable of hearing these cases. They make sound legal decisions, which is supported by the fact that there is very low appeal rate of only 0.7%, 50% of which are dismissed or abandoned.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[James Cartlidge]

I give way to the Chair of the Justice Committee.

[Sir Robert Neill]

I, too, support this amendment. My hon. Friend will remember, or will perhaps know, that the Justice Committee has raised this in the past when we did an inquiry in relation to magistrates. A concern was raised by his predecessor that this might have an impact on the levels of those going into custody, but we were never able to find any evidence to support that. It seemed, essentially, anecdotal. Has any hard evidence been found to suggest one way or another?

[James Cartlidge]

The short answer is no. That is certainly my impression. The reason that we are making this change is that we have faith in our magistracy. I have spoken about the huge shift that they put in during the pandemic to get the backlog down in the magistrates courts. When it comes to trying to make guesses about what impact this will have, the key thing is to simply trust our magistrates to look at the case before them, to take into account sentencing guidelines, to take the advice of their legal advisers, and to make their sentence according to the circumstances of the case before them, which is how they always behave.

We want to make this change as quickly as possible, so that we can ensure maximum benefit for court recovery. That is why we will be implementing the policy on a national basis from the outset, rather than first running a pilot in select courts. This clause supplements the provisions to extend the sentencing powers of magistrates courts by introducing a power to vary the limit on the length of sentence that the magistrates courts may give to either six months or 12 months in the future. This will ensure that there is the ability to return to the current position in the event that any unsustainable adverse impacts materialise—of course, we sincerely hope they will not.

Taken together, this amendment and the magistrates’ recruitment campaign launched this week shows that this Government are committed to our magistracy and understand how important they are for court recovery.

--- Later in debate ---

To finish, I emphasise again that Labour supports measures that will streamline and build efficiency into the justice system; it is vital that we do so to bring the backlog down. But we cannot compromise access to justice in the name of efficiency, so I hope that the Government will accept the new clause.

[Sir Robert Neill]

All in all, this is a valuable Bill and I welcome the Government amendments. I practised criminal law for the better part of 30 years before I came into the House—in both magistrates courts as a younger barrister and then predominantly in the Crown court, both prosecuting and defending. It never seemed logical that the legislative provision introduced by the Labour Government in 2003 had not actually been brought into force.

Much has changed since that time in the way magistrates operate—and for the better, frankly. It seems to me that there have been real efforts to make the bench more diverse, and those recruitment activities are continuing. As a Select Committee in the previous Parliament, we wrote a report about the magistracy—the first for a number of years—that recognised the value of the work that magistrates do. Since 2003, the sentencing guidelines have been developed to a high degree and they are available now to all benches as well.

[Andy Carter]

My hon. Friend mentioned a diverse bench. Does he agree that it is vital that employers think about the value of having employees on the bench? They should be considering that step in personal development for employees.

[Sir Robert Neill]

I salute my hon. Friend’s work as a magistrate over many years. What he says is absolutely true, and the Justice Committee report picked the point up at the time. When I practised in parts of east and central London, magistrates benches used to have a very high number of what we would now term blue collar workers—frequently trade union officials and public sector workers. They were given time off. Some of the major employers—Ford at Dagenham in the old days, for example—used to allow employees time off to serve as magistrates. The courts were much the better for that. I hope that that can be encouraged and we should make it easier to achieve.

We should also look at magistrates’ expenses, which have not been updated for very many years. We do not need legislation to do that, but we should make it worth people’s while to serve and not leave them out of pocket. That is important.

When the Committee published the report and considered why the provisions in the Criminal Justice Act 2003 had not been brought into force, we questioned the evidential basis. At that time, the Ministry of Justice’s line was that there was a risk of an adverse impact on the prison population, but we were never able to find any evidence to establish that. I think there is a bit of an urban myth that magistrates are heavier handed in sentencing than the Crown court would be. In fairness, when I first started, there might have been a bit of anecdotal evidence that I came across to support that view, but things have moved on over the years. The benches have a more sophisticated approach to sentencing and the guidelines have developed to such a degree that that dimension has changed.

[James Daly]

I truly wish that my hon. Friend would come to Bury magistrates court, then he would know a bench of magistrates who were willing to impose the stiffest possible sentences. My hon. Friend the Minister referred to the backlog, on which this debate is framed. I am a member of the Justice Committee, under the excellent chairmanship of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). We should be considering the measures in terms not just of the backlog, but of the new offending that comes into the system. I believe the measures will give confidence to the police and to other partners in the criminal justice system that, instead of creating more backlog, by releasing more people under custody we can get them before the magistrates, sentenced and dealt with at the earliest opportunity.

--- Later in debate ---

[Sir Robert Neill]

I agree with my hon. Friend and recognise his experience in the field. I do not think this needs to be framed as a backlog-reducing measure. There is merit in the measure in its own right, as there was in 2003 when the Labour Government introduced it. With all due respect to the Minister, it does a bit of disservice to the measure to say it is done to reduce the backlog, and that it can be reversed. I would hope it would not be reversed; it is desirable in terms of a better allocation of case time, and it is a better use of court arrangements to keep lower level cases in the magistrates court.

A powerful point was made about the reduction in the number of committals for sentence and those cases when the magistrates refuse jurisdiction in relation to either-way offences. I do not think that will be eaten away by people electing that course of action needlessly, particularly if they have good and sound early legal advice.

That is where I think we can improve the system. Doing so does not require our legislating in this Bill, but we should make sure that when we revise the legal aid system, we front-load it so that there is proper legal advice available from solicitors at a very early opportunity to get informed pleas and early disclosure into the system. That will of itself be likely to keep more cases down at the magistrates court level, and would get more pleas. When they are confronted with the reality of the evidence, and with sound advice, more people will accept that they should enter a guilty plea when they have committed an offence.

That is the right way to deal with the issue, which is why I think the amendment is entirely justified in any event. Of course, it has to be applied on a national basis. The idea of a pilot never seemed realistic and would be against the principle of natural justice. It could not be right if there was a postcode lottery and someone could get a higher sentence in Bury than they could in Bromley because one was in the pilot. We either do it nationally or not at all, and the Government have made the right call.

I hope we will continue to invest in training and professional support for the magistracy, which again our Committee report called for.

[Edward Timpson]

We have to remember that magistrates sit not only in the criminal courts, but in the family proceedings courts. Support and advice, and the recruitment of magistrates, will be really important in making sure that children and families are also getting justice through the family court system.

[Sir Robert Neill]

That is entirely true. We know that there is sometimes a struggle to get sufficient magistrates to sit in the family jurisdiction. They are absolutely crucial. There is a separate piece of work that needs to be done, so that, as with early legal advice, informed decisions and choices are made. That applies in the magistrates court in the criminal jurisdiction and also to decisions that have to be taken in family court proceedings. I am a great believer that the lawyer is the best route into mediation in many family law cases. Having the magistrates end of the family jurisdiction treated seriously is really important for doing justice and for the early resolution of issues for the benefit of the parties and the children involved.

--- Later in debate ---

[Sir Robert Neill]

I understand the spirit in which the shadow Minister makes that point. He will know that the Justice Committee has said on a number of occasions that we cannot get justice on the cheap. I accept that we cannot write blank cheques, but the fact is that the proportion of total public spending that goes on the court system is a fraction of a fraction. We get justice for a very small amount of overall public spending in this country and a modest increase in that could be entirely justified, even within the existing budgets. With the increase in the Department’s allocation in the last spending, there is scope to do that. However, in terms of a greater reprioritisation of Government spending, more weight ought to be given to the importance of an effective justice system. It is a fundamental part of a democratic society and of the rule of law, and the magistracy are a key part of that.

I understand the spirit in which the shadow Minister spoke to a number of his amendments. I have sympathy with a lot of the thrust behind them and I hope that the Government will take them on board. I do not think that they need to be written in legislation, but there are issues relating to the way in which the single justice procedure operates. I am not against this—I think we have all seen what happens in magistrates courts when a bench sits in an entirely empty court going through a whole list of TV licence defaults or road traffic offences where nobody has attended. That is not a good use of time.

A fair point was raised with the Justice Committee about this issue in relation to open justice. More needs to be done to improve, for example, publication of the lists online so that people can be aware of what is happening and what can be done in relation to the publication of the results. That does not require legislation, but it should be invested in. Again, it is a small amount in the overall scheme of things.

I also share some of the concerns about the operation of the Common Platform. We have to accept that that is not necessarily a silver bullet; virtually no public sector IT system ever is. We have to continue to invest in it, but we cannot ultimately get around the fact that criminal justice—in fact, all justice systems—ultimately depends on the quality of the individuals in it. The technology is there to help, but ultimately, it is the good-quality lawyers, good-quality judges and good-quality probation professionals who help.

[James Daly]

My hon. Friend is making an excellent speech. On the justice system and quality individuals, does he, like me, welcome Sir Christopher Bellamy’s report and recommendations, and would he encourage Front Benchers to take a very favourable view of them?

[Sir Robert Neill]

I know we are straying towards the edge of the topic, Madam Deputy Speaker, but I think this is germane, because to make these reforms to the court system work, we have to invest in the professionals who operate in it. I welcome Sir Christopher’s report; it is immensely well researched and immensely well written. The truth is that within the uplift in the Department’s funding, there is scope, I say to the Minister, to implement Bellamy over the period of the spending round. I know that he has had constructive engagement already with Sir Christopher, and I urge him and his colleagues to continue to do so. We should thank Sir Christopher for his work.

I hope, therefore, that we will support the Government amendments. I hope that the Opposition will not press their amendments to a vote, but they raise legitimate issues that the Government should take on board. We all want to co-operate on having a court system that works. Efficiency should not be a matter of partisan debate, because justice must continue to be there, and the more settled arrangements we have across the House, the better confidence will be.

Finally, I express my thanks to magistrates. I have many friends who have served as magistrates. They do a very great public service, but the more magistrates we can get who are younger, the better. We have done pretty well on gender diversity, but we need to do more about recruiting magistrates from ethnic minority communities. That must continue to be a priority. I hope that that will be done by valuing the job; by giving them the resources, and that includes the physical resources and the buildings they sit in, many of which are pretty woeful; by a more imaginative approach to local justice—to where custody cases, for example, are not necessary and to listing cases nearer to people’s homes—by making it easier for witnesses to get to courts, because that was a concern that we raised in our report on access to justice some years ago; and by encouraging the best-quality people to go into the work that is done at the sharp end. That work, actually, is largely in the solicitors’ profession—I say that as a member of the Bar—because they are the people who do the police station call-outs, the early advice and the first appearances in front of magistrates. That is why Sir Christopher’s report, in that regard, is very important.

[Anne McLaughlin]

You will be pleased to know, Madam Deputy Speaker, that most of the SNP’s objections are around judicial review, so I have only two amendments that I want to speak to and I can do that within a couple of minutes to give other people time to speak.

The online procedure rule committee will potentially cover wide areas of law and will sometimes make rules applicable in completely distinct legal jurisdictions. The SNP is concerned about the lack of representation on the committee from Scotland. Amendments 40 and 41 would therefore ensure that someone with knowledge and experience of the Scottish legal system will be appointed to the committee and that appointment should be made by the Lord President of the Court of Session in Scotland. I cannot see any reason to say no to that. That would address the imbalance in the representation of the Scottish legal system and allow the Government to keep up their pretence about respect for Scotland ahead of an independence referendum.

I say to Labour colleagues—I do so gently because the Labour Members present were on the Committee and we very much enjoyed working collaboratively with them—that I was a little disappointed that, with one notable exception, they abstained on amendments that would in effect have allowed Cart judicial reviews, or Eba judicial reviews as we call them, to remain in Scotland. I ask them to consider voting for this simple little measure so that we would have someone with experience and knowledge of the Scottish legal system to represent our system on the committee.

New clause 7 in my name would ensure the Bill’s compatibility with article 6 of the European convention on human rights: the right to a fair trial. To return to the example I gave earlier about the employment tribunal fees judgment in 2017, if the Bill had been in place when that landmark ruling was handed down, no one would have had fees refunded, everyone would have continued to pay the unlawful fees and, going forward, the Government could have simply changed the unlawful so that it was lawful: in other words, there would be no point whatsoever in taking the Government or other public bodies to court. The chilling effect would be widespread. That is surely a breach of article 6, which gives people the right to a fair trial and an effective judicial remedy. The new clause would allow judges a way to disapply the Bill if they considered there was a breach.

Let me give one more example of a group of people who may be refused their rights to a fair trial if the Bill passes: those who require legal aid. To secure legal aid, applicants must be able to demonstrate a tangible benefit if their case is successful. As I and others have demonstrated, if the Bill is enacted, there will regularly be no tangible benefit. If the Government are trying to keep people on average and low incomes away from being able to bring judicial reviews and access justice, they are doing a very effective job, but they should at least be honest about that. They have said and will keep saying that the Bill is compatible with article 6, but surely that begs the question: why do they continue to resist any amendment to ensure compatibility?

--- Later in debate ---

[Andy Carter]

My experience is that the overwhelming majority of magistrates will do everything they can to avoid passing a custodial sentence, and if a custodial sentence is required, a primary consideration is to look to suspend that sentence. Of course, all magistrates, no matter their length of service, sit with an experienced legal adviser who guides them through every step of the process from a legal perspective, so I absolutely agree with my hon. Friend that it will not make a significant difference in that respect.

I know that the idea of changing magistrates’ sentencing powers has polarised opinions, with some saying that lay members of the judiciary should have no powers at all to impose custodial sentences. I am afraid I do not agree: magistrates play an important part in the sentencing process and the role of legal advisers in the courts ensures that the right sentence is given in the overwhelming majority of cases. The Minister mentioned that less than 1% of cases that go into magistrates courts appear in the Crown court for an appeal. I serve on a Crown court appeals panel and there are very few occasions on which I feel that something is wrong and the sentence given should be overturned.

The Minister mentioned that the increase in the retirement age for magistrates is covered in another Bill, but it is important that all these steps are taken together. My hon. Friend the Member for Eddisbury (Edward Timpson) introduced an excellent private Member’s Bill to address the issue, which the Magistrates Association has looked at carefully. Many good, experienced magistrates —presiding justices who chair the benches—are approaching 70 or have gone over that age but can contribute significantly to the work of the courts.

I am delighted that the Government have addressed the issue and look forward to welcoming back colleagues with whom I have served who can bring their experience back into the courthouse. We must remember that when new magistrates are recruited they can sit as wingers for the first five years of their time in the court, and it is important that they sit with experienced magistrates. If we did not address that issue and all the magistrates were reaching retirement age, we would have a serious problem in respect of experienced presiding justices in the magistrates courts, so I am pleased that that increase is to happen.

I wish to touch for a moment on the proposal to make changes to local justice areas. I recognise the importance of local justice and defendants, victims and witnesses not having to travel too far to attend a courthouse, but from a magistrate’s perspective there are some perverse issues with local justice areas. Let me give the House a couple of examples. I live on the border of Greater Manchester but operate in the Cheshire and Merseyside area. The courthouse in Greater Manchester is closer for me to get to, but because I am not in the Greater Manchester local justice area, I cannot sit in that court. That makes no sense at all, so I urge the Minister to look into new ways of thinking about local justice areas for magistrates so that they can sit in whichever courthouse is closest to them, no matter what local justice area might apply.

I was recently given another example by a magistrate who sits in Highbury but lives in Hertfordshire. His court in Highbury does not sit at the weekend—it has no operation at the weekend at all—so he is a working magistrate who is available to sit in the courthouse on Saturdays but, because he does not operate in the Hertfordshire local justice area, he is not able to sit at the weekend, when he is most available. It would be really valuable to create the flexibility for magistrates to sit in areas that are convenient for them and where they understand the pertinent local issues.

As I said, it is important that we recognise that defendants, victims and witnesses should not have to travel long distances and rack up travel costs. It is really important that justice is done locally and I would not want to see trials and cases listed for courts many miles away from the local area.

I want to talk briefly about technology. I have seen a number of different technologies used in courtrooms, and a number of different systems trialled—Common Platform has been mentioned—and one thing I have seen is that, whatever system is put in place, the legal advisers are brilliant at adapting how they operate, particularly in magistrates courts. I know that magistrates courts have had to make some changes recently and that some things are not quite as quick as they used to be, as legal advisers are recording cases at the same time. I think the Opposition spokesman talked about paper files. Any suggestion that we want to go back to using paper files in courthouses is really not the way forward. When I first started as a magistrate, we all had a big book containing all the sentencing guidelines. Everything is computerised now, and the ability to look up sentencing guidelines or to calculate fines on a laptop is really valuable. I think that all magistrates would recognise that, despite some early hesitancy, we now have a far better system.

My final comments on the changes in magistrates courts reflect the point I made earlier to my hon. Friend the Member for Bromley and Chislehurst about younger magistrates. The Young Magistrates Network has made some really good inroads into understanding the perspective of being a JP while holding down a full-time job. I welcome the extension of the retirement age, but we also need to think about how we have as wide a talent pool as possible. We should have on the bench hard-working members of society who are in employment. If we are getting to a situation where only retired people have the time to sit on the bench and are selected, that is really dangerous.

Importantly, I also think that parents should be encouraged to sit on the bench, particularly in youth courts, because the knowledge and experience of being a mum or dad can be so very valuable when talking to a young person appearing before a youth court.

[Sir Robert Neill]

My hon. Friend makes an important point about the youth courts. Does he agree that it is often not appreciated that the youth courts deal with very serious matters which, if they involved adult offenders, would undoubtedly go to the Crown court, and that requires not only the best possible lawyers, but the most experienced and diverse magistracy available to deal with those important cases, just as we would expect for a jury, with the same level of experience of the world that is brought to bear across the piece?

[Andy Carter]

My hon. Friend is absolutely correct. The sentencing powers of youth courts are already far greater than those in magistrates courts for criminal offences. I do not sit in youth courts, but I have observed them and I know that the conversation and dialogue that takes places between the bench and the young person who finds themselves in court is very different. We do need a really broad, balanced bench in the youth court. I encourage the Minister to look at what support he can give to encourage employed people and young people to come into the magistracy.

The Young Magistrates Network—it is co-ordinated by a young magistrate, Luke Rigg, who has done a marvellous job of looking at this area—has made some very good recommendations, which I think HMCTS is now considering as part of its review. We need to ensure that any recruitment campaign is targeted, using social media, in the right places. I encourage the Minister to look at the school governors’ network, which has done a really good job of talking to employers about the value that somebody who is a school governor can bring to their business. I think that magistrates can also bring a tremendous amount to a business.

Since coming to this House, I have pushed for a number of things to happen in relation to the magistracy. I have raised three or four issues many times, so it is absolutely brilliant that the Minister is putting them all in the Bill. It is like all my birthdays coming at once: everything is happening on the right day. I am very supportive of the Bill. I thank the Minister for engaging with the magistracy and the Magistrates Association, for listening to JP colleagues and for the progress that we are making.

--- Later in debate ---

[Sir Robert Neill]

I have great respect for the hon. Member for Stockton North (Alex Cunningham), but I am afraid I have to disagree with his characterisation of the Bill. It makes modest reforms, which seem sensible. Although I accept that the changes to judicial review are not uncontroversial, they are not a wholesale attack. I would not support them if they were. It is important to recognise that judicial review is fundamental. We need to get that on the record. It is an absolutely necessary part of the checks and balances. It can be refined, but it must never be undermined in principle. I do not believe that the Bill does that.

It is important that we properly fund the system that enables the courts to deal with judicial reviews and other matters. In fairness, there is a missed opportunity. I agree with the shadow Minister about funding for families of bereaved persons at inquests. The Justice Committee’s report advocated that and I hope that the Government will not give up on it, but revisit it because there is an equality of arms argument here. That is not a reason to vote against the Bill, but I think that the Government have missed a trick and I hope they will reconsider that.

The changes to the criminal justice system are worthwhile in themselves, but it is important that the Government did not go greatly beyond the report by Lord Faulks, whom we should congratulate again. I hope the Government will adopt the same approach to the review by Sir Peter Gross. Sometimes less is more.

Judicial Review and Courts Bill

Robert Neill Excerpts

Consideration of Lords amendments
Tuesday 26th April 2022 Commons Chamber

[Andy Slaughter (Hammersmith) (Lab)]

I thank those who have worked to improve this Bill during its progress through both Houses. Without embarrassing him, I would single out my hon. Friend the Member for Stockton North (Alex Cunningham), who volunteered to lead on the courts part of this Bill—that is, most of it—before he had even finished with the Police, Crime, Sentencing and Courts Bill. I would also mention the efforts of our colleagues in the other place, particularly my noble Friends Lord Ponsonby and Baroness Chapman and senior Cross Benchers, who are a large part of the reason why we are discussing successful Lords amendments today—all credit to them.

In the spirit of consensus that has been a feature of much of our proceedings, I thank the Minister and his team for at least listening and entertaining our views, even if we did not in the end see eye to eye, and for their significant concession in removing the presumption from clause 1. Since the Bill was first introduced, I have also been lucky enough to work with many individuals and organisations with particular expertise on the issues covered. I would like to put on record my thanks to the Public Law Project, Inquest, Justice, Liberty, the Bingham Centre, the Law Society and the Bar Council, but that list is not exhaustive.

The majority of amendments before the House today—Lords amendments 6 to 10 and 12 to 22—are Government amendments that amend part 2 of the Bill. For the avoidance of doubt, we do not oppose these. We had issues with part 2 of the Bill, but these were mainly procedural and are, I hope, open to correction in the light of experience. Our objections to part 1 are more fundamental, and we are grateful to the other place for highlighting these in Lords amendments 1 to 5. I will deal with these and then come on separately to Lords amendment 11.

First, by way of a little context, we see no purpose whatsoever in clauses 1 and 2 of this Bill, and it would be our preference to remove these clauses from the Bill entirely. Our attempts to do so in Committee were not successful, but our principal objections were reflected in the Lords amendments. Lords amendments 1 to 3, in the name of the noble Lord Marks, remove prospective-only quashing orders from the Bill.

One of the ways that the Government wish to change—they say improve—judicial review is to introduce a remedy that only rights a wrong for the future, without looking to compensate the complainant or those who have come before them. This has rightly been described as having a chilling effect on meritorious applications. It was not recommended by the independent review of administrative law that was supposed to found the basis of part 1 of the Bill. It does not, as the Government somewhat disingenuously claim, add to the armoury of the administrative court; it simply seeks to restrain its powers. That fact is given away by the clunking fist of the presumption in favour of prospective orders and of suspended orders, which clause 1 also sought to introduce. In a step bordering on the disrespectful, the Minister sought to tie the hands of the court in applying its discretionary powers, so I am delighted the Government have seen the light and do not today oppose Lords amendment 4, in the name of Lord Anderson. That extracts the worst of the sting in clause 1.

Lords amendment 5, in the name of Lord Etherton, was a pragmatic attempt to make sense of the Government’s proposal to abolish Cart judicial reviews in clause 2 of the Bill. It met both the Government’s complaint that these were too profligate and the real concerns of practitioners and others that errors of law would lead to human tragedies. It would also have mitigated the concerns about unnecessary and unwelcome employment of an ouster clause. Cart judicial review, as Members here know, is engaged when the High Court reviews a decision of the upper tribunal to refuse permission to appeal a decision of the first-tier tribunal.

Clause 2 abolishes this type of judicial review altogether, yet most cases that satisfy the threshold for Cart are compelling. In many examples, as we discussed in Committee, these are asylum or human rights cases—issues of mental health, special educational needs or entitlement to basic incomes and support needs—which have serious consequences for the claimants if errors of law have been made and are sometimes matters of life and death. Lords amendment 5 narrows the ambit of Cart so that in the majority of cases there is no onward right of appeal. The only exception would be where the case raises a point of law of general public importance. In that situation, the claimant could apply to have the case considered by the Supreme Court.

The amendment represents a compromise between the Government’s desire to save the cost of Cart judicial reviews and the need to preserve an essential judicial check against serious errors of law. All that has been argued in the other place, and votes won—albeit narrowly—on amendments 1 and 5. In discussions, the Government have conceded on the presumption. We accept that that is a significant concession, and we do not intend to press any votes on the Lords amendments clauses 1 and 2 today.

Let me turn to Lords amendment 11. Eleven days ago, on 15 April, we marked the 33rd anniversary of the Hillsborough tragedy, where 97 people lost their lives at a football game. For 33 years the families of those who were lost have fought, and continue to fight, for justice. They faced cover-ups and fundamental failures of our legal system, which only prolonged their suffering. Many campaigners—prominent among them the Mayors of Greater Manchester and the Liverpool City Region, former colleagues of ours in this place—are asking for a comprehensive Hillsborough law, which we support. Lords amendment 11 addresses an important plank of the Hillsborough law, but it goes beyond that by providing equality of arms for all bereaved families at inquests and inquiries.

The amendment would require the Government to provide public funding for bereaved families where the state is represented. It is remarkable that, even with the cuts in legal aid that we have seen over the past 10 years, current rules do not provide that. This is an issue not just of access to justice, but of basic fairness. How can it be that state bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowdfunding?

Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made 25 recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. The inquiry by the all-party group on legal aid last year reached a similar view, and many voices are saying the same thing: it is time to level the playing field when state actors are represented in inquests.

The Government have acknowledged that there is more to do on this issue. They are minded to offer non-means-tested legal aid for early advice and representation where exceptional case funding is engaged. With respect, that is not enough. It would not help—to give only some examples—in the situations of families of those who suffer healthcare-related deaths in detention, self-inflicted deaths of voluntary patients in mental health settings, those under the direct care of a mental health trusts in the community, deaths in supported accommodation, or care settings where the person has been placed by a public body or local authority. It would not have helped Coco Rose Bradford, a six-year-old girl with autism who was taken to hospital in Cornwall and died unexpectedly on 31 July 2017. In January 2022, the inquest into her death concluded, finding it to be due to natural causes—something Coco’s family disputes. Coco’s mother, Rachel Bradford, told the inquest how she watched her daughter die in front of her, and how the hospital dismissed the family’s concerns, even though Coco was in glaringly obvious pain. Rachel gave evidence that Coco’s autism played a role in how she was treated by medical staff, and that the professionals wrongly viewed her as being unco-operative and non-compliant.

Members of the local community donated to contribute towards the family’s legal costs for the inquest. Coco’s mother said in a personal statement:

“Without our barrister offering to act pro bono at the inquest hearing we’re not sure what would have happened. It seems desperately unfair that we have had to crowdfund to cover our legal fees, and rely on our barrister waiving her charges, when the hospital’s legal team are paid for by our taxes.”

Cases such as those are daily injustices in our coroners courts. We can no longer ignore the voice of Bishop Jones or Rachel Bradford. I urge members of this House to retain Lords amendment 11 because it is the right thing to do. If the Bill passes without the inclusion of Lords amendment 11, we will miss another opportunity to ensure that fairness is at the heart of our legal system.

From the day this Bill was introduced, we have puzzled about why the Government were wasting time interfering with judicial processes that are designed to improve the quality of executive decisions, rather than tackling the record backlog of cases in our courts and protect the victims of crime. By supporting Lords amendment 11 the Government could make a small but significant step to improve the court system and the experience of bereaved families.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the Front-Bench speakers in this short but important debate. I welcome the Government’s stance on presumption and their acceptance of the amendment made in the Lords. It is worth remembering that Lord Faulks, who chaired the independent review that gave rise to all these proposals, took the view that no harm was done by removing that presumption, and that thereafter the discretionary power to have a prospective-only order that can be considered by the courts if it meets the interests of justice was, as I think he put it, an extra club in the bag of the judiciary. That is the whole point of it: it extends the remedial powers available. At the end of the day the presumption was not perhaps necessary, and the Government have taken a sensible and pragmatic stance on that. The principle of having that extra flexibility in the remedy is not objectionable, and I am glad the Opposition have not opposed it.

Some of the other changes made by the Government in the Lords are welcome. The ability to make payment for pro bono representation in a number of cases is welcome, and I am glad the Government have moved in that direction. Practitioners and the judiciary alike will welcome the changes to make online procedure rules easier and swifter to deal with, so those are practical changes.

Two issues then remain, including Cart appeals and litigation. I must respectfully differ with the shadow Minister and their lordships on that, and it is perhaps worth quoting what Lord Faulks said about it in the other place—after all, he examined this issue with probably more care than anyone. His stance was that the independent review into administrative law

“came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1736.]

That was its view, having carefully considered the evidence, in adopting a cautious approach to such a change.

Cart was controversial at the time, and it remains controversial. Lord Carnwath, who has given evidence to the Justice Committee in the past, raised questions about the Cart appeal, with his specialist knowledge of the genesis of the upper tribunal. The general view of many is that, to quote a phrase used by Lord Hope in Committee, it was a “legal misstep”. There are, of course, a tiny number of successful cases, but those should be set against the very real burden that falls not on the Court of Appeal, where Lord Etherton— for whom I have great respect—served, but on the justice sitting in the Queen’s bench division. That is where the judicial pressure is, and we should look to remove something that many practitioners, and in private many members of the judiciary, regard as an unhelpful burden on them.

In immigration cases in particular, convention rights will be engaged, but they will have been engaged from the outset. By the time we get to the Cart appeal, they will have been argued and considered by the first-tier tribunal and by the upper tribunal which, as Lord Carnwath pointed out, was designed to be a superior court, and to have in effect the judicial weight and equivalence of the High Court. An anomaly arises from the Cart decision, and it is right and proportionate to remove it.