Judicial Review and Courts Bill (Eleventh sitting)

Debate between Tom Hunt and Anne McLaughlin

Tuesday 23rd November 2021 Public Bill Committees

Tom Hunt

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I will keep my remarks fairly brief; I see myself very much as a secondary signatory to these amendments from my right hon. Friend the Member for South Holland and The Deepings: my much wiser, senior colleague. However, at one point last week I did think that I would be spearheading these particular amendments myself. Fate has meant that I have assumed a less significant role today.

Most of the comments that I would like to make are in relation to new clause 5, so I will hold off from making those comments now. All I will say is this. I take the point that new clause 3 is significant and Parliament needs more time to look at it. That was not the case when the change occurred after the Privacy International case. Actually, something very significant happened there. There was a major change in relation to the powers tribunal, its role and the role of judicial review in reviewing its decisions, and Parliament had no say at all in supervising that or debating it. I would be grateful if the hon. Member for Hammersmith let me know whether he agrees with my view on that. If he is concerned that Parliament might not have more time to debate the significant change suggested now, surely he would consider it inappropriate for Parliament not to have had a role back when the role of judicial review in relation to that tribunal changed so significantly.

I think that there are two debates here. If we are asking our intelligence services to carry out incredibly unique and peculiar work and we have to have a tribunal that is very specialist in reviewing and taking into account work that they do, there is one debate there, but there is a second debate. Even if someone does not agree with that and they think that there should be a right of review, surely it is only right and proper that Parliament should be in a place to debate and decide on that. It should not just happen; the court should not just decide for itself that this is the right thing to do.

As I said, I am keeping my comments brief. I will return on new clause 5, on which I have more points to make.

Anne McLaughlin

- - Excerpts

I will be brief. Basically, I agree with the hon. Member for Hammersmith and share the concerns about this being the second ouster clause in the Bill. I feel it is a bit early to use the legal framework to oust Cart already.

I hope the Government will wait for the Bill to be enacted before trying that. I agree that the new clause is not the way to go about amending this. Such a provision should be a headline measure in a Bill; I think the right hon. Member for South Holland and The Deepings—that is a lovely constituency name—said himself that this would ordinarily be in a new Bill. I understand the argument that there is not an awful lot of time for new legislation, but I think this measure needs to be debated seriously and properly. Parliament needs a full understanding of the issues, following a full consultation.

I would argue an awful lot harder and longer than that, first, if I thought the Government were about to support the new clause, and secondly, if I thought anybody would listen. [Interruption.] I do not mean if they would listen to me; I mean if I thought we would ever win a vote in this place. The Government should be very careful in reversing that decision and should think about the consequences of it. I agree with everything that the hon. Member for Hammersmith has said.

Judicial Review and Courts Bill (Fifth sitting)

Debate between Tom Hunt and Anne McLaughlin

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Amnesty for Undocumented Migrants

Debate between Tom Hunt and Anne McLaughlin

Monday 19th July 2021 Westminster Hall

[Tom Hunt (Ipswich) (Con)]

I beg to move,

That this House has considered e-petition 567681, relating to an amnesty for undocumented migrants.

It is a pleasure to serve under your chairmanship, Mr Hosie. The petition calls on the Government to

“grant an urgent Amnesty to Undocumented Migrants living in the UK.”

It attracted 103,440 signatures, and I thank each and every one of those people for participating in our democracy by signing the petition, which has led us to debate this very important issue.

It is clear that covid-19 has added a bit of impetus to the decision to sign the petition. There has been concern about the ability of undocumented migrants to get access to a vaccine, which is of benefit both to them and to the wider society, because we know that people are less likely to transmit the virus when they have had the vaccine. That seems to have given the petition a bit of added impetus, because having an unstable existence is made even more challenging through covid-19. As for many things, covid-19 has made a challenging situation more challenging, so I can understand the decision of 103,440 people to sign the petition.

In terms of what the petition calls for, it is as simple as granting an amnesty to all undocumented migrants living in the UK, except those who have a criminal record. The petition was quite clear that if someone has a criminal record, they should not be the beneficiary of the proposed amnesty, but I have to say that there is not much more detail than that. I assume that the petitioners want to treat every undocumented migrant the same, regardless of whether they are someone who has been living here for over 10 years and who has put down extensive family roots, or somebody who, quite frankly, arrived here last weekend on a dinghy from Calais. That is something that the petition is missing, because there is no clarity. I can only assume that the petition is essentially referring to every single undocumented migrant. I also assume that it would be a one-off amnesty for all undocumented migrants, but I am unsure about whether the petitioners wish it to be something that happens routinely—for example, every five or 10 years. That is also not clear. What is clear is the desire to regularise the status of all undocumented migrants, which is what we will be debating today.

The arguments in favour of the petition are clear. There are many individuals and families who have come here as undocumented migrants. Some may have come illegally in the first instance. Some may have come here legally, but the legal time that they are allowed to be here has expired and they are looking to regularise their position. It is a combination of both of those. However, there are many who are making a positive contribution to our country in difficult circumstances. At the moment, it is a very challenging situation for them.

There is also an argument that, by regularising their status, it actually leads to their paying more taxes, which is beneficial to the taxpayer. I have some sympathy with the argument that says we should treat people a bit differently if they have been here for 10 or 12 years and have put down extensive family roots. Is it really realistic, or likely, that the Government will deport migrants at that stage? It is incredibly unlikely. If we are of the view that it is incredibly unlikely that we are ever going to deport migrants in those circumstances, there does seem to be a strong argument that we should regularise their status, and perhaps an argument could be made for an amnesty. However, in terms of the arguments against, and in relation to the petition, I simply cannot support treating a family who may have been here for more than 10 years the same as somebody who came here last weekend in a dinghy.

We also cannot make assumptions about every single person who is in the undocumented migrant category. The reality is that there will be some people who have come into this country through an illegal route. We do not know whether they are genuine refugees; it is impossible to know whether all of them will be. Among them there will be some economic migrants, so ultimately those individuals would likely be the beneficiaries of the blanket move as suggested by the petition. That is something that I cannot support.

If we were to support a blanket amnesty for every single undocumented migrant, it would be impossible to sustain that position while at the same time not being in favour of open borders. I find it very difficult to understand how you could support an amnesty—and potentially have one regularly, every five or six years—and not support open borders. As a Member of Parliament of this country, I would never support open borders. It would put unsustainable amounts of pressure on our public services. There would be all sorts of problems with social integration if migration was unmanaged to that extent. It would also limit our country’s ability to show compassion towards the most genuine refugees and to have a laws-based, rules-based immigration system that allows us to welcome the brightest and the best who want to come to this country to make a positive contribution. More to the point, it would be a slap in the face for all of those people who have moved to this country legally and who have followed the—often cumbersome—rules. They have followed them. They have done their side of the bargain. They have moved here legally. This would be a slap in the face to them.

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

Does the hon. Member know that a lot of the people that we are talking about, undocumented migrants, have come here legally? They are undocumented not through any fault of their own. Does he accept that?

--- Later in debate ---

[Tom Hunt]

With the greatest respect to the hon. Member, I did make the point that the proposal would apply both to those who may have entered the country illegally and to those who may have entered legally but for a fixed period of time that has expired. Yes, it is a mixture. That is why I am against a blanket amnesty. It would be a significant movement away from the case-by-case approach that the Government are currently taking, which takes into account the differences between cases and the nuances of different circumstances. An amnesty would not do that.

Yes, some of the individuals who would benefit from an amnesty would be those who came here legally but whose time has expired, who are struggling with the process, who have been here for 10 years and who are making a positive contribution. However, it would also include those people who have shunned the laws of our country, who have deliberately come here illegally and who, frankly, have no more right to be here than the families or individuals who are patiently waiting to come here legally. That is the reality of the situation.

We are also talking at a time when the Government are dealing with the significant challenge of the illegal crossings from Calais—

[Anne McLaughlin]

Will the hon. Member take an intervention on that?

[Tom Hunt]

No, I am not going to take another intervention. That is a situation in which individuals, regardless of their circumstances, are knowingly deciding not to engage with the legal process for claiming asylum or to immigrate here in a legal way, but to shun that legal approach and come here in an illegal manner. The danger of a blanket amnesty is that it would send out a message to all of those people who come over illegally and fuel an evil trade in human lives. It would potentially make the situation a lot worse. The money fuelling this evil trade in human lives would increase and potentially more lives would be put at risk, because if we adopted a position such as the one set out in the petition, which is very close to an open borders immigration policy, essentially the message would be: “Once you’re in, you’re in. So get over here, ignore the processes, because it’s worth the risk”. The risk is very real; it could lead to the loss of lives.

[Anne McLaughlin]

Would the hon. Member be surprised to hear then that his own Prime Minister has toyed with the idea of exactly what is being called for in this petition—an amnesty for anybody who has been here for a certain period of time? The Prime Minister has also talked about it recently.

[Tom Hunt]

With the greatest of respect, if the hon. Member has read the motion in the petition, she will see that that is not what this petition is calling for. It mentions nothing about being here for 10 years. Essentially, it is a blanket amnesty for every single undocumented migrant. People across the political spectrum have floated and supported the idea of a limited amnesty targeted at those who have been here, say, for over 10 years. As I said earlier in my speech, I believe there are some merits in those arguments.

However, this petition is not calling for such an amnesty; it is calling for a situation that sits very closely to an open border policy, in my view. I think it would lead to chaotic results, unintended consequences, unsustainable pressure on public services, problems with social integration and, as I also said earlier, it would limit our capacity to promote a compassionate, generous, rules-based immigration system and approach to refugee resettlement, which could benefit this country and which, I believe, is supported by the majority of people in this country.

That is sort of the wider picture. Of course there will be examples of where the status quo fails individuals and individual families, and we need to work with that system to improve its efficiency and how quickly it deals with these cases, so that it can turn them around as quickly as possible and get people the outcome they need as soon as possible, so that they can plan their lives with certainty. Of course, that is something that I support.

However, the current Government position is that if someone has been in the country for a long period of time, there are opportunities to regularise their status. Nevertheless, I think it is appropriate and fair that that is done on a case-by-case basis, because we cannot make huge generalisations with regard to those who come under the category that we are talking about today, because the motors vary and the circumstances vary enormously.

In conclusion, although I sympathise with the reasons why people have signed this petition and their concern about the circumstances that many people face at the moment, the petition is not focused enough in what it is calling for. To me, it is calling for a blanket amnesty for every single person, many of whom have come here illegally and shunned the legal process. It would be a slap in the face for those who have come here legally, and there would be serious unintended consequences.

If the hon. Members taking part in this debate believe in this petition as it stands, they should run with that policy in a manifesto in a general election. There would be a resounding answer from the British people, namely that they would not support this proposal. The vast majority of people in this country see the benefits of immigration and are compassionate towards refugees, but they want a rules-based system and this petition would fly in the face of that.

For all those reasons, I would be unable to support this petition, but I am glad that this subject will have a good airing today. Having looked at the call list, I predict that perhaps we will hear some arguments being raised that are different to those I have raised. There probably will not be much reiteration of the arguments I have just made, until perhaps the end of the debate.

--- Later in debate ---

[Tom Hunt]

Thank you very much, Mr Hosie, for chairing this debate so expertly. I thank the Minister for his response and every other participant for making this debate pretty well-tempered and balanced.

[Anne McLaughlin]

So far.

[Tom Hunt]

The hon. Lady should not worry. As I was saying, it has been a pretty balanced debate in which we have heard both sides of the argument. I also think that there is a shared concern for the individuals in question. However, this is a very complicated issue, with unintended consequences.

It seems to me that very few Members agreed with the petition’s call for pretty much a blanket amnesty for every single undocumented migrant. However, I think there is space somewhere for a very important debate about how we can potentially do something in this area.

Obviously, one of the real concerns is what amnesties might mean in terms of encouraging future illegal crossings. In some respects, if the Opposition supported the Bill going through Parliament today and if that Bill were enacted, as I hope it will be, they might think that the public were in a much better place to have a debate about a reasoned amnesty and pathway for citizenship because there would be public confidence that, in doing so, we were not fuelling illegal crossings from the continent. That may be, at some point, where we get to: if there is confidence that we have a rules-based immigration system and we are confident that we are in a better position to tackle illegal crossings and make determinations about the people who aspire to live in our country, perhaps at that point we could have that important debate about amnesties.

Actually, there are some shortcomings when it comes to an amnesty for those who have been here for over 10 years. I said that I saw some of the arguments in favour of that, but it is a complicated issue.

Clearly, though, this has been a productive debate. This issue needs to be debated much further; I am sure that it will be. Again, I thank the more than 100,000 people who signed the petition. Hopefully, they will feel that, at the very least, the issue—in a general sense—has had a good airing and been thoroughly debated today.

Question put and agreed to.

Resolved,

That this House has considered e-petition 567681, relating to an amnesty for undocumented migrants.