Independent Review of Administrative Law

Stuart C McDonald Excerpts

Thursday 18th March 2021 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Justice Committee. His reference to the late Lord Bingham and the description of the audit role is an invaluable intervention. That is precisely what the Government seek to do here. It is all about protecting the role of the judiciary as well. I am a fierce defender of their role and I want to make sure that they are not inadvertently drawn into matters of policy, which are matters for this place, the Government, and democratic institutions, and not drawn into merits-based assessments as opposed to assessing the legality or otherwise of Executive action or omission.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) [V]]

I thank the Justice Secretary for his statement and the panel for its work. We will, of course, scrutinise the report carefully and constructively, but we will do so from the starting point that there is very little about this vital democratic safeguard that needs to be fixed. We absolutely do not share the Justice Secretary’s concerns about perceived expansion of judicial review. Our concern is that successive Conservative Governments have sought to constrain anything that gets in the way of their agenda: a gagging Bill on charities; restrictive trade union laws; cuts to legal aid; and, this week, the egregious attacks on the right to protest. We would be utterly failing as an Opposition if we did not approach this whole project with a healthy and significant degree of scepticism and concern. Talk of ouster clauses and restricting remedies is indeed especially alarming, and leads us to question again—is not this more about the Prime Minister’s anger at judgments such as the article 50 Miller case or the Prorogation case led by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry).

Par for the course, this announcement was trailed this week in the context of migration litigation, but, in that context, if the Government were really interested in reducing reliance on judicial review, why do they not restore the statutory appeal rights that they have slashed and burned over the past decade or invest properly in decision making, so that it is faster and more decisions are right first time? In short, it is better to fix the failing Home Office instead of meddling with one of the only systems that people have left to protect themselves from its incompetence. That is true right across Government. More reviews about asylum seekers have been talked about this week. Tomorrow, it will be people’s housing or social security cases.

Finally, the Justice Secretary has been reminded repeatedly from these Benches that the inherent supervisory jurisdiction of the Court of Session to review Acts of Government is protected by the Act of Union and the Treaty of Union. Will he confirm that anything that impinges on that jurisdiction is not for this Westminster Parliament or Government to decide?

[Robert Buckland]

I am grateful to the hon. Gentleman. May I answer his last question first? I can give him that assurance. With regard to the Cart jurisdiction, that clearly relates to a reserved matter concerning immigration issues, which does, of course, apply to the Scottish jurisdiction as well. In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.

With regard to the hon. Gentleman’s other assertions, I will simply say this: to conflate issues relating to public order with this Government’s approach to the rule of law and their steadfast belief in democratic institutions is, once again, to stretch reality too far. Without repeating the arguments that we had earlier this week, I cannot equate the adoption of recommendations by the independent Law Commission about the law of public nuisance with the sort of reactionary, authoritarian acts of France of the 1790s. It beggars belief that such comparisons are being made. They do not stand close scrutiny, and I am sure that in the weeks and months ahead, the intellectual poverty of these arguments will be exposed.