Judicial Review and Courts Bill (Second sitting)

Tom Hunt Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[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.

[Janet Daby (Lewisham East) (Lab)]

Q According to Transform Justice:

“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”

It sounds like you may agree, Mr Rebello. To what extent do you think online pleas are compatible with the principles of open justice?

André Rebello: I am not sure that is a matter for a coroner, because I deal with inquisitorial proceedings in which there are no pleas.

Richard Leiper: This might relate to the Crown court part of the Bill, which I do not think either of us deals with. Online pleas would be an aspect of the criminal process.

--- Later in debate ---

[Angela Crawley]

Thank you.

[Tom Hunt]

Q This is to Sara. In principle, do you agree that the Government have a duty to ensure that precious and limited judicial resources are directed as effectively and efficiently as possible?

Sara Lomri: Yes, of course.

[Tom Hunt]

Q But with such scarce resources and pressure, and such a low success rate in the cases that do get JR, how could that be seen as an efficient and effective use of precious resources?

Sara Lomri: In relation to Cart JRs, we are talking about a constitutional principle. Public Law Project and others are saying that that price tag of £350,000 to £400,000 is worth it and a good use of resources.

When we talk about Cart JRs, we talk about the case of G, who had been seriously mistreated in Nigeria and trafficked to the UK. The Government agreed at the first-tier tribunal that she was a victim of trafficking, but the tribunal came to a bunch of erroneous decisions, including that the evidence that supported her being a victim of trafficking was not substantiated, and came to the wrong decision. She brought a Cart JR, which was successful. As a result, she and her child were not returned to Nigeria, where they invariably would have been killed. That is the price tag.

We say that that is such an important procedural constitutional principle that the tribunal’s decisions should be reviewed from time to time by the High Court—by a judge who is more senior, has more time to consider the evidence, and who is sometimes better placed to make those decisions. Yes, we think that is an efficient, much better use of scarce resources.

[Tom Hunt]

Q But you accept that the vast bulk—well over 90%—of that £350,000 of scarce resources is spent on cases that are going to be unsuccessful.

Sara Lomri: It is the same amount that DCMS spent on its art collection in 2019-20. When we are talking about constitutional principles, I do not think we can say that is too much money.

[Tom Hunt]

Thank you.

Ellie Cumbo: Could I come in briefly on that point? We entirely agree that judicial resource is precious. As one of your earlier witnesses said, more of it would make an enormous difference to the issues we are dealing with, such as the backlog in courts at the moment. However, there are other interests that it must be balanced against, including that once again, in these cases, we would be talking about an unlawful decision by the upper tribunal. I think it is a reasonable expectation that unlawful decisions should be able to be challenged.

I would make a second point about resource. If we take the Public Law Project’s figure of around 5.7%—so around the 6%—that is not incomparable to the number of rape reports that lead to a conviction: nobody would argue that that is a waste of resource.

[Tom Hunt]

Q My understanding is that the 5.7% figure is heavily contested. In fact, I have seen figures of under 1%.

Ellie Cumbo: I believe Sara can speak to the extent to which that is a contested figure. It seems clear on paper, at least to me.

[The Chair]

Is that the end of the answers?

Ellie Cumbo: Yes, from me.

--- Later in debate ---

[The Chair]

If we have time at the end. We have got three more questions that one or more of the panel may wish to answer. I call Tom Hunt.

[Tom Hunt]

Q This is for Steve. I have a certain understanding of the word “tyranny” and what it means. I can think of many regimes in the world that are tyrannies, sadly. There are too many where great harm is done to people’s lives. In this country we have by and large a sound legal system that works effectively. I understand there is a debate here about whether a lower and upper tribunal is enough and whether it is appropriate for Cart JR to have a third bite of the cherry. The debate is ongoing. Do you regret that on 26 October you used the word “tyranny” and said the Government were promoting it in this Bill? Is it unhelpful or does it help the debate?

Steve Valdez-Symonds: I do not regret the use of the word. I was drawing attention to the fact that there was considerable interference in the functioning of a judicial function in the tribunal system and the way in which the Government were legislating not just in this Bill—this is an important factor, which is not before this Committee—but in the Nationality and Borders Bill at the same time. If it is passed in its current form, it will impose direction on judicial figures in the tribunal system as to how they may perform their judicial function, and how they must or must not weigh and assess evidence and appellants in front of them, pre-empting what will be in front of them by statute.

It is a grave concern that at the same time as withdrawing in this Bill the oversight of our constitutional courts to ensure that the tribunal system works properly according to law, the Government are seeking to legislate to incapacitate those tribunal systems to manage independently and fully their own judicial functions. That is the effect of provisions in the Nationality and Borders Bill. You can look at them in clauses 16, 20 and 23. Provisions like that, although not going anywhere near as far—dating back to 2004, the time of the ouster that this Committee has discussed that was put forward by the Labour Government—have caused much confusion already.

[The Chair]

Steve, I really should have pushed Tom on this because it falls outside the scope of the Bill.

[Tom Hunt]

The comment made was in relation to this Bill, so I do not know where the Nationality and Borders Bill has come from.

[The Chair]

I think the witness tried to justify it in an explanation relating to a different piece of legislation.

[Tom Hunt]

It was a comment made by the panellist in relation to the Bill we are discussing today.

[The Chair]

Okay, we will continue.

[Tom Hunt]

Of course, the definition of tyranny is cruel and oppressive government—

[The Chair]

Sorry, Steve, you were answering.

Steve Valdez-Symonds: The point I have made is that you cannot properly look at these two Bills in isolation, because clause 2 of this Bill affects whether there is any constitutional court scrutiny of whether the tribunal system performs the functions that Parliament has set it up to perform. At the same time, you have legislation to impede that tribunal’s functions about whether it can perform those duties. You have legislation from the very Department whose decisions it will be responsible for regulating—the Home Office. I think it perfectly appropriate to raise the concern that if that sort of interference were going on in the courts of other countries, we would, as I said, describe it as tyranny. [Interruption.]