Judicial Review and Courts Bill (Fifth sitting)

Tom Hunt Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[James Cartlidge]

I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.

[Tom Hunt (Ipswich) (Con)]

Given that the Opposition have spent so much time opposing all the steps the Government have taken to fit capacity into the system, does the Minister agree that there is a certain irony that they had planned to hold an Opposition day debate yesterday on how to sort out the court backlog?

[James Cartlidge]

My hon. Friend may have had sight of the speech I had prepared to wind up yesterday’s debate. In fact, I was ready to take part at 10 pm, when rumour had it that the Opposition might still go ahead with the debate. He is absolutely right. We have a serious backlog issue. We have been very open about that. The primary driver of the surge in cases was the fact that courts were closed during the pandemic, and social distancing measures have made it much harder to dispose of cases, particularly in the Crown court. In those circumstances, 180 days of a High Court judge’s time is a precious resource indeed, which is why we take the view that exceptions should not be made in these cases. That is not depriving potential migrants of rights because they would still have, to coin that old phrase, two bites at the cherry.

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[Tom Hunt]

It is a pleasure to serve under your chairmanship, Mr Rosindell. It is certainly the first time; I would have remembered otherwise. I will talk about clause 2 in a general sense. As I mentioned to my hon. Friend the Minister in my intervention, for which I was very grateful, there is a certain irony here. We have spent so much time debating the measures that the Government have proposed to free up capacity in the court system, but they are being opposed by the Labour party, which then has the cheek to hold an Opposition day debate on Monday purely about the court backlog.

The refugees who are arriving here illegally are potential refugees. Many will not be; many will be economic migrants who are fleeing from France, a safe European country. The 2011 Supreme Court decision that led to Cart JR in relation to these cases was a retrograde step, and in some respects has given judicial review a bad name. Judicial review is an important part of the justice system, but the influence of Cart JR has been negative and has given judicial review, which is very important for our justice system and our democracy, a bad name.

There is a debate about whether the success rate for Cart JR cases is 0.6%, 3% or 5%. A success rate of 5% is still extremely low, compared with 40% or 50% for other types of judicial review. We must bear that in mind. We hear that there are 750 such cases a year, at a cost of £400,000. I raised the issue of the financial cost last week, and this was belittled by a witness, who said that the cost was

“the same amount that DCMS spent on its art collection in 2019-20.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 52, Q75.]

Of course, that is not the key point. The key point is the wider pressure on the court system and on the time of our High Court judges. It is very clear that the pressure that Cart JR puts on the system makes it more difficult for our court system to get back on its feet after the impact of the pandemic. I am pleased with the practical steps that are being taken in other areas of the Bill to help with that.

This issue of the first, second and third bites of the cherry is interesting. I have not heard any practical reasons why immigration cases should be treated so differently from other cases by having a third bite of the cherry. We hear that, if there is one successful case, and even if only 2% or 3% of cases are successful, that is enough to justify Cart JR. If that is the only argument, why do we not have a fourth bite of the cherry, or a fifth? Can we say with certainty that, if we put the 97% of cases that are unsuccessful in the High Court to the Supreme Court, there will not be one or two that are successful? If one or two were successful, would that justify endless bites of the cherry? At some point, a balance must be struck. There is a limited amount of resources and significant pressure on the system. It is not unreasonable for the elected Government to make a determination about what is and is not reasonable. Even if the success rate is 5%, allowing endless bites of the cherry is not reasonable. It is not a justifiable pressure on the wider system.

Last Thursday, we also heard from the shadow Minister about many instances in which an individual had been successful in a Cart JR case in the High Court. Of course, such cases would have contributed to the 3% or 5%, but we would be here for about a week if we were to hear about each individual case that formed the 95%, or the 97%. Let us be absolutely clear: many of those individuals would be having a pernicious influence and a negative impact on our country—they would be illegal immigrants—and, frankly, the sooner we can get them out of the country, the better.

[Anne McLaughlin]

The hon. Member is talking about the sooner we can get rid of these people out of the country. One of the people I spoke about on Second Reading was a Venezuelan man who fled after state actors murdered a friend of his. He knew that he was in danger because he had witnessed that. The first-tier tribunal and the upper tribunal did not interpret his evidence correctly, according to the subsequent judge, after the Venezuelan man successfully got a judicial review. He is surely one of those people whom the hon. Member is talking about—the sooner that we can get rid of these people—because he would lose the right to have his appeal judicially reviewed, if the Member gets his way.

[Tom Hunt]

The sad reality is that in any justice system in the world, every now and then, there will sadly be a case that is not—but can we say with complete confidence that every case heard in the High Court has the right outcome? Perhaps, as I was saying, that is having a fourth or fifth bite at the cherry. We also need to reflect on the fact that the vast majority of these cases are not a good use of our judges’ time. They are not worthy of a further bite at the cherry. What is the practical argument for why they should be treated differently from anyone else in the justice system, who has two bites at the cherry? There is no argument for it.

I will draw my comments to a conclusion. Broadly, I welcome the Government’s moves in clause 2. The vast majority of my constituents would support what is happening. They believe in a fair justice system, in which we have a right to appeal—which we have here; that is not being changed—but they are realistic about the wider pressures on the court and justice systems. They see the Labour party doing everything it can to oppose reasonable and justified means to free up capacity in the courts system, while coming up with no practical arguments for how it would do so or that would be better than what the Government have suggested. That is unreasonable. Also, it is wrong to say that everyone who is going to go down this Cart JR route is not abusing the system and our good generosity as a country, because many are.

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

I am inspired to speak to this part in our consideration, partly by the Minister’s eloquent explanation of why the amendments are undesirable, partly by the wise words of my hon. Friend the Member for Ipswich on how the traditional system is in a way being besmirched by the gaming of it, in particular in immigration cases, and partly because of the delight of serving under your chairmanship, Mr Rosindell, which I have not done often, but am particularly pleased to do, under the watchful gaze of one of my political heroes, Joe Chamberlain, who began life as a radical and ended it as a member of a Tory Government, understanding, as you and I do, that liberalism is the triumph of frenzied licence over dutiful obligation. It is because of obligation and, in the spirit of Chamberlain, our patriotic respect for our constitution that we must resist the amendments.

To hear some critics of the Bill, one might think that the Cart was embedded in the settlement between Parliament and the courts, and yet it is a modern thing. As you know, Mr Rosindell, it is the product of a decision by the Supreme Court as recently as 2011, when it declared that the High Court could judicially review decisions of the upper tribunal to refuse permission to appeal from the first-tier tribunal, whereas previously it was held that it could not.

At the heart of our consideration of the Bill is a fundamental difference about the character of our belief in the character of judicial review, but also a difference in our understanding of the separation of powers. We saw that in our evidence sessions. We had evidence from academics, notably Professor Ekins who, by the way, authored the report by Policy Exchange—which I commend for its excellent work on this subject. He was very clear that some of the recent decisions by the Supreme Court and other parts of the court system have challenged the supremacy of Parliament.

We also heard from Aidan O’Neill, who said he was a constitutional lawyer, and I understand he is—quite a notable one, from what I read. He said that this was about mutual respect, but mutuality is not the basis of our constitutional settlement. The roles of Parliament and the courts are distinct—the separation of powers; the clue is in the name. Of course there is a relationship between them, because this place makes laws and the courts oversee laws, but judge-made law is not consistent with our constitutional settlement and some of the perverse decisions of the courts in recent years have led, in the words of Professor Ekins, to parliamentary sovereignty being openly questioned. He said:

“Parliamentary sovereignty was openly questioned and the rule of law was set in apparent tension with parliamentary sovereignty, which is deeply wrong, I think”.—[Official Report, Judicial Review and Courts Public Bill Committee,2 November 2021; c15, Q9.]

The defence of the rule of law is not a valid one, as the Attorney General made clear in her speech on these matters very recently.

The issue before us in respect of these amendments is clear. The judgment that was made in 2011 opened a new avenue of judicial review and those Cart judicial review cases have mushroomed since. This is particularly true for immigration cases, as my hon. Friend the Member for Ipswich said a few moments ago—not exclusively so, as the Minister pointed out, but largely. This has to be changed. Given that a previous Labour Government tried to tighten the requirements for judicial review, it is surprising that the current Opposition do not understand that this is a return to a stable and steady position—a normal position—that enshrines judicial review as an important part of the way in which citizens can acquire justice, but does not allow it to become what it has become, a means for people to perpetuate political debates that they have lost earlier. This is using the courts to—I never thought we would be speaking so much about fruit during the course of our deliberations, but to use the word that has been used several times before—have many bites of the cherry. We ought perhaps to think about another fruit, just for the sake of variety, but I suppose cherries will do for the sake of argument.

As I pointed out when we last met, the Opposition were going to have a debate yesterday on the court backlog. The amendments seem to me to have the effect of doing the very opposite and do not address the issue of the court backlog. We know that a very small number of cases that are brought under Cart judicial review—something like 3%—are successful, and yet there were around 750 per year between 2026 and 2019. We have many cases being brought on a wing and a prayer, with neither the wing flying nor the prayer being answered in terms of the result of the case. There is a pressing need, just on those practical terms, to reform judicial review in this respect.

I say to the Minister—not provocatively, but I hope helpfully—that I think the Bill can go much further. I think it is a very modest reform of judicial review. I refer him again to Professor Ekins’s work. There is a good argument for changing the rules of evidence, for example, which would tighten the system considerably. There is a good case for dealing with the effects of the Adams case, the Miller case and the privacy case, which he will know had profound effects on judicial review and on the balance between Parliament and the courts.

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The Government also insisted, as we have heard, that this measure will save valuable judicial resources and money, but again, their own assessment says it will save only about £400,000 per year. Even that figure is unfairly inflated, because it considers the cost of the upper tribunal rehearing the case, which will occur because an unlawful upper tribunal permission decision has been identified by other courts. To include those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position is just not acceptable.

[Tom Hunt]

A number of amendments have made it quite clear that the key issue is not the financial cost but the wider significant pressure that is put on limited, finite judicial resources. Will the hon. Member address that point?

[Anne McLaughlin]

I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.

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[Anne McLaughlin]

I absolutely agree with that. I am happy to talk about this because I do not think the Government have a leg to stand on when it comes to how they plan to treat the most vulnerable human beings on our planet.

That takes me to some examples of why the Cart JR is so important. I talked about the case of the Venezuelan man, and a Conservative Member said that it was sad but true that some people would fall through the net. We are not talking about somebody appealing a parking fine; we are talking about somebody who is alive today because he was able to access—

[Tom Hunt]

Will the hon. Lady give way?

[Anne McLaughlin]

Absolutely. I would love to hear what the hon. Gentleman has to say.

[Tom Hunt]

If that is the case, does the hon. Lady support a fourth, fifth or sixth bite of the cherry? How can we guarantee that at the third bite of the cherry we are going to get everyone right?

[Anne McLaughlin]

The “third bite of the cherry” is not about whether the case is correct or the person’s claim is correct; it is about whether they got the correct process and mechanics in the first place. If they were not able to access justice in the first place, they should have the right to have that heard by a judge.

[Tom Hunt]

I take the hon. Lady’s point about the distinction in respect of what we are looking at, but people can still get that wrong. Does she support the fourth and fifth bite of the cherry?

[Anne McLaughlin]

I think the hon. Member is trying to trivialise what we are talking about and I am not going to entertain it any longer. To my mind, the justice system should not accept that sometimes people will end up dead because we did not get it right. We should be striving for justice always, not accepting injustice. I am not entirely sure that Government Members are interested, but I am going to look at some more examples given by ILPA, although I could probably give numerous examples involving my own constituents.

There is the woman from Uganda who could not live there because she is a lesbian. The first-tier tribunal and the upper tribunal refused her case and her renewed permission to appeal because they received a letter from her saying, “I have come here for a job. I am not a lesbian. Sorry I am a liar.” Anybody can see that that letter did not come from her. The upper tribunal judge admired her candour, but it was not her who wrote it; it was the appellant’s homophobic housemate. We must bear it in mind that people are given housemates when in the asylum system; they do not go and choose them. Thankfully, ILPA stepped in, she was given the right to a judicial review and won her case. She is able to live as who she is and the person she is, not having to hide from violence or homophobia, thanks to judicial review.