Judicial Review and Courts Bill

Wera Hobhouse Excerpts

Consideration of Lords amendments
Tuesday 26th April 2022 Commons Chamber

Well intentioned attempts to seek a compromise miss the point. They will in effect render nugatory the recommendation made in IRAL—a clear recommendation made by independent and, in the proper sense of the word, disinterested members of that review panel—and will, I am afraid, have the baleful effect of undermining the intention of this House. I am pretty sure that that is not what their lordships really intended. I say to them that it is the clear will of this House that those clauses go through, with the Government amendment, as part of our incremental reform programme that is designed to rebalance our unwritten constitution and strike the right relationship between this elected House and this Parliament and our independent, world renowned judiciary.

[Wera Hobhouse (Bath) (LD)]

I rise to speak to Lords amendments 1, 2 and 3, all tabled by Lord Marks in the other place. I appreciate that the Government have made some concessions and I thank the Minister for his meeting with me.

Amendments 1, 2 and 3 would remove from the Bill the power to make prospective-only quashing orders. They are backed by the Law Society and Justice, and I urge Members across the House to back them too. Judicial review is one of the most powerful tools that an individual has to enforce their rights. Challenging the Government through the courts when they get things wrong is one of the core principles of our parliamentary democracy.

[Dr Caroline Johnson]

Will the hon. Lady give way?

[Wera Hobhouse]

No; I am conscious of time and Madam Deputy Speaker is anxious that we proceed.

The principle should not be party political but one shared across the House. It is disappointing to see the Government pushing ahead with plans to restrict judicial review by opposing the amendments. Unamended, the Bill is described by the Law Society as “chilling”; clauses 1 and 2 undermine judicial review. Prospective-only quashing orders could be hugely harmful to those seeking justice: they would not only deny redress to someone who had been harmed by a public body’s unlawful action, but actively serve as a disincentive to those seeking justice through judicial review.

Let us imagine a person who had incorrectly been deemed ineligible for carer’s allowance by the Department for Work and Pensions. That person successfully challenges the decision through judicial review. Prospective-only quashing orders would mean that the person did not receive the back payments unlawfully denied to them. Those payments could mean the difference between a person heating their house or going cold, or between eating or going hungry.

To make matters worse, extensive delays in courts mean that decisions could be put off for even longer. Prospective-only quashing orders arbitrarily discriminate between those affected by an unlawful measure before a court judgment and those affected after one. There are numerous examples. In 2017, the High Court ruled that a Home Office policy to deport EU rough sleepers was unlawful and discriminatory. The policy was scrapped. If a prospective-only quashing order had applied, then potentially only those receiving a removal notice would be protected; all those who had already faced removal or had had a removal notice issued against them would still have faced deportation. That would not have been justice.

Important as they are, the damaging effects of prospective-only quashing orders go far beyond individual cases. They damage the basic principle that underpins our democracy: that individuals must have the power to challenge the powerful when the powerful get things wrong. If the Government or public bodies are spared the risk of retrospective legal consequences, the motivation for good decision making is lower. Public bodies will take their chances, particularly in issuing welfare benefits, because the cost of getting things wrong would still be lower than getting them right in the first place. That is bad not only for those seeking redress from the courts but for all of us. It should ring alarm bells for all of us.

The Bill is just another Government programme of constitutional reform that weakens the institutions and rights that hold them to account. We saw that in the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Government’s voter ID proposals. We Liberal Democrats will continue to stand against any attempts to weaken the institutions and rights that hold the Government and the powerful to account. I urge Members across the House to do the same and vote in favour of Lords amendments 1, 2 and 3.

[James Cartlidge]

I am grateful to all those who have spoken about the Bill today. I have only a short time, so I will briefly canter over the points raised in this important debate. I am grateful to the hon. Member for Hammersmith (Andy Slaughter) for recognising that we have made a significant concession on the presumption; we, in turn, are grateful for having been enabled to bring important reforms to judicial review through clauses 1 and 2.

On the issue of judicial review and prospective-only quashing orders, I thought that my hon. Friend the Member for Sleaford and North Hykeham (Dr Johnson) made a good point to the hon. Member for Glasgow North East (Anne McLaughlin) in saying that we cannot have it both ways. The Bill gives new powers and flexibility to judges; we should not at the same time fetter judges and try to predict what they would do in individual cases. That is the key point. As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), Chair of the Justice Committee, said, this is about giving judges an extra club in the bag—a golf analogy; I said that it was another tool in the toolbox. Whether we use DIY or sport analogies, we all understand that there is an extra tool for the judiciary—more powers and flexibility.

On the issue of Cart JR, my hon. Friend made a really important point. The resource issue is about High Court judges, particularly in the Queen’s bench division, who after all hear some of the most serious cases around the country, not just in London.

I understand where my hon. Friend is coming from, and concerns from all hon. Members, when it comes to legal aid. I have previously expressed my strong sympathy—particularly for MPs in the north-west, who have had a long experience around Hillsborough. Of course we are looking at that and other matters.

The hon. Member for Hammersmith is aware of the measures that we have already introduced. Even if we agreed on this measure, the Opposition would surely have to accept that it simply would not be possible for such a significant measure to be introduced at such a late hour in the course of a Bill. Were we to continue to go back and forth on this, we would risk undermining the Bill—and we must not forget that it also contains very important measures on criminal procedure, not least changes in magistrates’ sentencing powers. As soon as those new powers come in, they will start to have an impact on our backlog by ensuring that cases that would otherwise be dealt with in the Crown courts can be heard in magistrates courts. I therefore think it important for the Bill to receive Royal Assent.

As I have said, I am pleased to commend the vast majority of the Lords amendments to Members, but I ask them to join me in disagreeing with Lords amendments 1, 2, 3, 5 and 11, and agreeing to the Government’s amendment (a) while disagreeing with Lords amendment 5.

Question put, That this House disagrees with Lords amendment 1.