Judicial Review and Courts Bill

Wera Hobhouse Excerpts

2nd reading
Tuesday 26th October 2021 Commons Chamber

[Mr Lammy]

I have not reflected on that statement very much.

I was reminded recently of the importance of judicial review by the infamous “Judge over your shoulder” leaflet, which has been published since 1987 to remind civil servants of the importance of sound decision making. The leaflet advises civil servants of the importance of good governance and of making decisions effectively and fairly to avoid those decisions being found unlawful. It recognises that administrative law and, in this case, judicial review played an important part in securing good administration by providing a powerful method of ensuring that the improper exercise of power can be checked.

Frankly, that is why having effective judicial remedies is so important to maintain good governance. The threat of judicial review is a powerful tool to encourage decision makers to make decisions well and fairly. If the power of quashing orders were to be neutered in the way clause 1 seeks, not only would that leave victims of unlawful decisions without the remedy they deserve, but it would reduce the motivation for public bodies to take care when making decisions. I agree with the Law Society of England and Wales when it says that that would have a truly chilling effect on justice in this country and we must question why the Government are even considering the changes in clause 1. Those changes go far beyond what was recommended by the Government’s own independent review of administrative law. The review made no recommendation that quashing orders should be prospective only. It specifically recommended against that type of presumption.

[Wera Hobhouse (Bath) (LD)]

Does the right hon. Gentleman agree that the sign of a mature democracy is that it protects the marginalised and vulnerable? Government Members completely misunderstand that point.

[Mr Lammy]

The hon. Lady is absolutely right. That ought to be a principle across the House, not a party political issue.

To return to the review of administrative law that the Government set up, in their consultation response, the Government acknowledge that presumptions were not recommended by the review panel, and they were generally met with scepticism from respondents to the consultation. Indeed, it is not even certain whether prospective-only remedies would withstand a challenge before the European Court of Human Rights for failure to provide an effective remedy. Given the Government’s own panel of experts, and the sector, are opposed to that change, and given the harmful effect that it would have on victims of unlawful decisions, as well as on governmental decision making, we must ask why the Government are keen to make this change. Is it really, as they suggest, to provide courts with greater flexibility, or is it simply to insulate the Government from being held to account, and to weaken the power of claimants to seek compensation?

Clause 2 seeks to abolish Cart-type judicial reviews. For Members who may not be familiar with what those are, Cart judicial reviews allow individuals to ask the High Court to review decisions made by the upper tribunal to refuse a right of appeal. The vast majority of Cart reviews are sought by those who find themselves in horrendously desperate situations and they invoke some of our most fundamental human rights, including in some cases the difference between life and death. During the review of administrative law that the Government set up and the consultation stage, the Immigration Law Practitioners Association provided the panel with 57 case studies of when Cart judicial review has been used to put right an incorrect decision made by the upper tribunal. Those case studies included parents’ applications to be reunited with their children, a child’s application to remain in the UK to receive lifesaving treatment, the asylum claim of a victim of human trafficking and female genital mutilation, and many other deportation and asylum decisions where, if deported, individuals faced persecution or their lives would be at risk.

--- Later in debate ---

[Wera Hobhouse (Bath) (LD)]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright). As someone with no legal training, I always enjoy listening to people with legal training who make clear what the issues are. I hope the Government listen carefully to the concerns that he has raised about part 1 of the Bill. As always, the Government are putting forward perfectly reasonable proposals and mixing them up with something that is very controversial. On the Opposition side of the House, we are not at all convinced that this Bill is anything other than an attack on the most vulnerable and most marginalised in our society, and we want to protect them.

The Government claim that this Bill will hand additional tools to judges. What the Bill actually does is restrict judicial review. Judicial review is working well in this country. Although these proposals might not go as far as many feared, I remind colleagues of Lord Neuberger’s words that judicial review

“is what ensures that the executive arm of government keeps to the law and that individual rights are protected”.

Government accountability is fundamental to our democratic society. That is the principle on which Liberal Democrats oppose this Bill.

Taken against the Government’s broader programme of constitutional reform, it is difficult to see this Bill as anything other than part of a concerted effort to take power away from individuals and to stop them holding Governments to account. In the past year, we have seen: the Police, Crime, Sentencing and Courts Bill, which restricts people’s rights to peaceful assembly and protest; voter ID proposals under the Elections Bill that stop people from vulnerable and marginalised backgrounds from exercising their democratic right to vote; and attempts to weaken the Human Rights Act 1998 and the UK’s commitment to the European convention on human rights. Now we have a Bill that limits people’s ability to hold Governments to account through the courts.

Key elements within the Bill are particularly concerning. Clause 2 permits the courts to abolish Cart judicial reviews and imposes de facto ouster clauses. That removes a vital safeguard in situations where tribunals make mistakes. We have heard about that several times already this afternoon. The vast majority—92%—of Cart judicial reviews are immigration and asylum cases. Many of the remaining cases concern access to benefits for disabled people and other people facing destitution. Those are all situations where the stakes are incredibly high for the people involved.

[Matt Rodda (Reading East) (Lab)]

The hon. Lady is making a fascinating speech and some very strong points. Does she agree that there is now an established body of judicial review going back a number of years that seems to demonstrate that this particular area of law has allowed the Executive to be held to account by the most vulnerable and weakest in our society? Does she also agree that an additional benefit, as mentioned by the former Attorney General, the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), is that it focuses the minds of those working in Government—in particular those in the civil service and Ministers—to provide better quality decision making in the first place?

[Wera Hobhouse]

This issue absolutely is about that particular section of society who seem to be under attack in this case. Decisions have been made where those people should have been supported in the first place, and then they do not even have a comeback under the law, and that is just wrong.

What is more, the low success rate, which the Government are using to defend their plans, massively understates the number of Cart judicial reviews that secure a positive outcome for the claimant. Scrapping Cart judicial reviews goes against everything that a fair-minded liberal democracy stands for. We Liberal Democrats will never cease to stand up for such rights.

The Government state in their press release that

“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

In other words, they are admitting that the Bill is the thin end of the wedge and that it could open the door to more ouster clauses in the future, which would create whole areas of Government action that could not be judicially reviewed, making them immune from accountability through the courts.

Liberty has described the Bill as

“part of this Government’s bid to make itself…untouchable.”

The Law Society warns that the Bill

“should ring alarm bells for people who come up against the might of the state.”

There can be no justification for such a Bill in a democratic society. I urge colleagues across the House to vote against it.