“(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In subsection (1), after ‘(4)’ insert ‘or (7).’
(3) After subsection (6), insert—
‘(7) This subsection is satisfied where—
(a) the services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and
(b) one or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.
(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.’.”.—(Andy Slaughter.)
This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 5—Removal of the means test for legal help prior to inquest hearing—
“(1) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In paragraph 41, after sub-paragraph (3), insert—
‘(4) For the purposes of this paragraph, the “Financial resources” provisions at section 21 (and in The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 do not apply.’.”
This new clause would remove the means test for legal aid applications for legal help for bereaved people at inquests.
New clause 6—Eligibility for bereaved people to access legal aid under existing provisions—
“(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(2) In subsection (4)(a), after ‘family’, insert ‘or where the individual is an Interested Person pursuant to section 47(2)(m) of the Coroners and Justice Act 2009 because of their relationship with the deceased’.
(3) In subsection (6), after paragraph (c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’
(4) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.
(5) In paragraph 41, after sub-paragraph (3)(c), insert—
‘(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.’.”
This new clause would bring the Legal, Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of family used in the Coroners and Justice Act 2009.
New clause 8—Exclusion of review of the Investigatory Powers Tribunal—
“(1) Section 67 of the Regulation of Investigatory Powers Act 2000 is amended as follows.
(2) Leave out subsection (8) and insert—
‘(8) Subject to section 67A and subsections (9) and (10), determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether the Tribunal has jurisdiction and purported determinations, awards, orders and other decisions) shall be final and shall not be subject to appeal or be liable to be questioned in any court.
(9) In particular—
(a) the Tribunal is not to be regarded as having exceeded its powers by reason of any error of fact or law made in reaching any decision; and
(b) the supervisory jurisdiction of the courts does not extend to, and no application or petition for judicial review may be made or brought in relation to, any decision of the Tribunal.
(10) Subsections (8) and (9) do not apply so far as the decision involves or gives rise to any question as to whether the Tribunal—
(a) has a valid case before it;
(b) is or was properly constituted for the purpose of dealing with the case;
(c) is acting or has acted in bad faith, with actual bias or corruption or in some other way that constitutes a fundamental procedural defect.
(11) No error of fact or law made by the Tribunal in reaching any decision is to be construed as relevant to the question.’
(3) The amendment made by subsection (2) applies to determinations, awards, orders and other decisions of the Tribunal (including purported determinations, awards, orders and other decisions) made before the day on which this section comes into force.”
New clause 9—Evidence in judicial review proceedings—
“(1) Unless there are compelling reasons to the contrary, no court shall—
(a) permit oral evidence to be elicited in judicial review proceedings; or
(b) order public bodies or any person exercising or entitled to exercise public authority to disclose evidence in anticipation of or in the course of judicial review proceedings.
(2) In relation to any judicial review proceedings, or in anticipation of any judicial review proceedings, in which a public body or a person exercising or entitled to exercise public authority argues, or indicates its intention to argue, that—
(a) the proceedings concern a matter that is non-justiciable, or
(b) that an enactment excludes or limits judicial review, no evidential duty arises on that body or person until a court determines that the matter is justiciable and that no enactment excludes or limits judicial review.
(3) In subsection (2), ‘evidential duty’ means any principle of law or rule of court touching the identification of relevant facts or reasoning underlying the measure or other matter in respect of which judicial review is sought, or any order of the court to adduce oral or other evidence.
(4) Nothing in subsection (2) or (3) affects an evidential duty that may arise in relation to judicial review proceedings other than in relation to a measure or other matter that is argued to be non-justiciable or to be excluded from judicial review by legislation.”
Amendment 23, page 1, line 3, leave out clause 1.
This amendment would remove clause 1 of the Bill continuing the status quo removing the provision to make quashing orders suspended and prospective-only.
Amendment 1, in clause 1, page 1, line 8, leave out from “order” to end of line 9.
This amendment would remove the provision for making quashing orders prospective-only.
Amendment 24, page 1, line 9, at end insert—
“(1A) Provision under subsection (1) may only be made if the court is satisfied that it is in the interest of justice to do so.”
The insertion of this subsection would limit the use of any new remedies issued under clause one to where in the court’s view it is in the interests of justice.
Amendment 31, page 1, leave out lines 10 and 11.
This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.
Amendment 2, page 1, leave out lines 15 to 18.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 3, page 2, line 2, leave out “or (4)”.
This amendment is consequential on Amendment 1, which removes the provision for making quashing orders prospective-only.
Amendment 26, page 2, line 4, at end insert—
“(5A) Where the impugned act consists in the making or laying of delegated legislation (the impugned legislation), subsections (3) or (4) do not prevent any person charged with an offence under or by virtue of any provision of the impugned legislation raising the validity of the impugned legislation as a defence in criminal proceedings.
(5B) Subsections (3) or (4) does not prevent a court or tribunal awarding damages, restitution or other compensation for loss.”
This amendment would protect collateral challenges by ensuring that if a prospective only or suspended quashing order is made, the illegality of the delegated legislation can be relied on as a defence in criminal proceedings.
Amendment 27, page 2, line 12, leave out “must” and insert “may”.
This amendment would make clear that the factors which the court considers before making a modified quashing order are a matter for the court’s discretion.
Amendment 33, page 2, leave out lines 14 and 15.
This amendment removes one of the factors to be considered by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect. This is intended to rebalance the factors to be given consideration so as not to disadvantage the claimant unfairly.
Amendment 34, page 2, line 17, at end insert
“including, but not limited to, the interests and expectations of a claimant in receiving a timely remedy”.
This amendment would make it clear that the provision of a timely remedy to the claimant is a factor to be given consideration by the courts when deciding whether to award a suspended quashing order or quashing order with limited or no retrospective effect.
Amendment 35, page 2, line 19, at end insert
“which are to be identified by the defendant”.
This amendment would require the defendant to identify what the interests and expectations of persons who have relied on the impugned act are and to explain these to the court.
Amendment 28, page 2, line 21, leave out
“or proposed to be taken”.
This amendment would remove the requirement to take account of actions which the public body proposes or intends to take but has not yet taken.
Amendment 37, page 2, leave out line 23 and insert—
“(f) the Convention rights of any person who would be affected by the decision to exercise or fail to exercise the power;
(h) any other matter that appears to the court to be relevant.”
This amendment would ensure that the courts would take into account the ECHR rights of those affected, including the right to an effective remedy, before exercising the new power to suspend a quashing order or give it prospective-only effects.
Amendment 29, page 2, line 23, at end insert—
“(8A) In deciding whether there is a detriment to good administration under subsection (8)(b), a court must have regard to the principle that good administration is administration which is lawful.”
This amendment clarifies that the principle of good administration includes the need for administration to be lawful.
Amendment 25, page 2, leave out lines 24 to 32 and insert—
“(9) Provision may only be made under subsection (1) if and to the extent that the court considers that an order making such provision would, as a matter of substance, offer an effective remedy to the claimant and any other person materially affected by the impugned act in relation to the relevant defect.”
This amendment would remove the presumption and make it a precondition of the court’s exercise of the new remedial powers that they should offer an effective remedy to the claimant and any other person materially affected by the impugned act.
Amendment 4, page 2, leave out lines 24 to 32.
This amendment would protect the discretion of the court by removing the presumption in favour of issuing suspended, prospective-only quashing orders.
Amendment 38, page 2, line 29, leave out from “court” to end of line 30 and insert
“may exercise the powers in that subsection accordingly”.
This amendment would remove the requirement for a court to issue a suspended or prospective quashing order when the provisions of section 1(9)(b) apply.
Amendment 32, page 2, leave out lines 31 and 32.
This amendment removes the extra weight which would otherwise be given to subsection 8(e) by the courts when applying the test created in subsection 9(b) to establish whether the statutory presumption is applicable.
Amendment 30, page 3, line 13, at end insert—
“(5) After section 31A of the Senior Courts Act 1981 insert—
‘31B Constitutional importance of judicial review
It is recognised that judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.’”
This amendment would highlight the importance of judicial review in the UK’s constitutional principles.
Amendment 5, page 3, line 14, leave out clause 2.
This amendment would preserve the ability of claimants to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal (also known as “Cart judicial review”).
Government amendment 6.
Amendment 42, in clause 2, page 4, line 16, leave out from “Ireland” to the end of line 17.
This amendment is consequential on amendment 43.
Amendment 43, page 4, line 19, at end insert—
“(8) This section does not extend to Scotland.”
This amendment would ensure that the exclusion of review of Upper Tribunal’s permission-to-appeal decisions did not extend to Scotland.
It is a pleasure to open the debate and speak to the new clauses and amendments that stand in my name and those of my right hon. and hon. Friends. I am grateful to the Government for their co-operation on the programme motion, and to the Minister and his colleagues for the civilised way in which we have debated the Bill thus far. Unfortunately, they were not persuaded by our arguments in Committee, so if there is no movement today, the Opposition will vote against the Bill on Third Reading, as we did on Second Reading. We have issues with part 2 of the Bill, which will mainly be dealt with by my hon. Friend Alex Cunningham in the debate on the second group of amendments, although I will deal in this group with our concerns about chapter 4 on coroners and our proposed new clauses 4 to 6.
I start with amendments to part 1 of the Bill, which are the most numerous and most needed to try to redeem the Bill. There is a strong clue to the Opposition’s approach in amendment 23, which we tabled to leave out clause 1 in its entirety. I have also signed amendment 5, tabled by the Liberal Democrats’ spokesperson, Wera Hobhouse, which would leave out clause 2. In short, we see no merit at all in part 1 of the Bill and would strike it out.
The purpose of judicial review is to determine whether public bodies have made lawful decisions and to provide remedies where they have not. The conceit of the Government’s approach, which would be taken further by new clauses 8 and 9, tabled by Sir John Hayes, is that the courts are trespassing on the rights of Parliament, substituting their views for ours and, in some ways, entering the realm of politics. We read that the Justice Secretary and the Prime Minister think that the Bill, which was introduced by the previous Lord Chancellor, Sir Robert Buckland, does not go far enough in clipping the judges’ wings. They seek to remedy that through repeal of the Human Rights Act 1998 and its replacement by a so-called new Bill of Rights and an interpretation Act: an annual audit by Parliament of which judicial decisions it likes and which it seeks to overturn. The Opposition think that that is constitutionally wrong and a provocation.
A better way to look at the role of the courts was set out by the late Lord Bingham in A. v. Secretary of State for the Home Department who, in rejecting submissions from the then Attorney General in that case, said:
“I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true…that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.”
We celebrate the role that judicial review plays in our constitution in amendment 30, which says that
“judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.”
Should the Government prefer that wording to that of the clause, that would be welcome. Failing that, we have tabled 11 further amendments that cumulatively or, in the alternative, seek to mitigate the worst effects of clause 1.
The clause introduces suspended or prospective-only quashing orders and cements them with a presumption that they will employed by the courts in most cases. The Government-appointed independent review of administrative law, which was supposed to lay the groundwork for the Bill, did not recommend prospective-only orders and specifically disapproved any presumption as to their use. Prospective-only orders could deprive claimants of a proper chance of redress and will certainly create a chilling effect. What is the incentive to pursue judicial review if the claimant has no prospect of having the wrong righted?
The presumption is the clearest but not the only way in which the clause seeks to fetter judicial discretion. The Opposition’s remaining amendments seek to restore that discretion and attack the most prescriptive parts of the clause. Amendment 24 provides that modified quashing orders will be applied only where, in the court’s view, it is in the interests of justice, and that they ought to be confined to those rare cases where a quashing order might cause, for example, significant disadvantage to third parties. Amendment 31 recognises that suspended quashing orders may be beneficial in some cases but seeks clarity from the Government on their intentions and what conditions they feel should be met when using the provision.
Amendment 26 looks to preserve collateral challenge in the event that such modified quashing orders are used. Let us say that delegated legislation made during the coronavirus crisis that created imprisonable criminal offences was declared illegal by a court. If a court granted a prospective-only quashing order under the Bill, that would make imprisonment legal before the remedy. A person accused could not argue before the criminal courts that the statutory instrument was invalid, because the measure requires a judge to act as if it were valid. The amendment seeks to protect a person’s right to use the court’s decision as a defence in criminal proceedings.
Amendment 27 clarifies any factors that the court considers are a matter for its own judgment. The current use of “must” instead of “may” directs the judge’s reasoning and interferes with judicial independence and discretion. That is especially obnoxious as judicial review is discretionary and involves taking account of all the factors before the court. The court must be able to do justice on the facts, not be nudged to decide cases favourably to the Executive.
Amendments 33 to 35, 28 and 32 deal with the list of factors the Bill requires the courts to consider when applying a quashing order. For example, amendment 33 will remove a factor that would unfairly disadvantage the claimant. Amendment 34 recognises that a suspended or prospective-only quashing order can leave a claimant waiting for justice, so it asks the court to be mindful of a timely remedy. Amendment 28 would remove the requirement to take account of actions that the public body proposes to take. For example, if a public body tells a court that it intends to carry out certain measures to fix a problem, the court may suspend the quashing order, but if the public body goes away and changes its mind on the actions that it will take, the claimant, again, is left without a timely remedy. Amendment 28 would ensure that the court does not have to take account of the proposals made by a public body, and so a quicker remedy for the claimant ensues. Taken together, the amendments rebalance the proposal in clause 1 to protect the rights of claimants.
Amendment 29 clarifies that the principle of good administration includes the need for administration to be lawful. Let me finally, in addressing clause 1, turn to amendment 25, which would remove the presumption that suspended or prospective-only quashing orders should be used, and, instead, favours an effective remedy being offered to the claimant so that justice is preserved. The presumption set out in clause 1(9) undermines the independence and discretion of the court. The presumption acts on a one-size-fits-all approach to justice and does not respect the judge’s ability to assess the facts laid out in front of them in their courtroom and decide on a suitable conclusion. Amendment 25 also has a further protective factor that, if clause 1 is kept within the Bill and suspended and prospective-only quashing orders are to be used, there will be a pre-condition that there will be an effective remedy. If a single step could improve this part of the Bill, save abandoning it entirely, it is the removal of the presumption. For that reason, we wish to test the House on amendment 25 this afternoon and put it to a vote at the end of the debate.
Clause 2 ousts the jurisdiction of the High Court in relation to what are called Cart judicial reviews and removes the supervisory jurisdiction of the court over the tribunal system in those cases—for example, where the upper tribunal has refused the claimant the right to challenge the decision made in the first-tier tribunal not to allow and appeal the earlier decision.
In Committee, we objected to clause 2 both because of the nature of the cases subject to the Cart jurisdiction, which are primarily, but not exclusively, immigration and asylum cases, and because, on the Government’s own admission, it is designed to set a precedent for future employment of ouster clauses, which they clearly intend to become a more common feature of legislation. That is another attempt to subvert the authority of the courts. Unlike with clause 1, there is little that could be done to improve clause 2—you either like it or you don’t. Therefore, most commentators who are concerned by it think that the only solution is to strike it down. That was also the view of both Opposition parties in Committee, and we see from amendment 5 that it is also the view of the Liberal Democrats whose amendment to leave out clause 2 I have signed.
Contrary to the Government’s narrative that Cart judicial reviews are profligate, they are only allowed to proceed where there is an arguable case that has a reasonable prospect of success that both the decision of the upper tribunal refusing permission to appeal and the decision of the first-tier tribunal against which permission to appeal was sought are wrong in law. The claim either raises an important point of principle or practice, or there is some other compelling reason to hear it. Again, this is a mechanism to right a wrong. In the instance of Cart judicial review, it is to be used when there has been a serious error of law in the first-tier tribunal and stops deserving cases slipping through the net.
Cart judicial review is usually used for asylum or human rights cases. As all Members will know from their casework, such claims are not only complex, but have serious consequences for the claimants and are often matters of life and death. The independent review of administrative law did favour doing away with cart JRs, but these recommendations were based on the wrong statistics—a very low success rate of 0.22%. The Government now admit that the success rate could be 15 times higher, at 3.4%. Other analyses estimate 5% or even above 7%.
In Committee I cited many compelling cases, which I do not have time to repeat here. We are concerned about the consequences for individuals currently protected by the right of appeal, albeit in narrow and prescribed circumstances. But we are also worried about the precedent being set for expansion in the use of ouster clauses. Clause 2 is not just a threat in this Bill but could come back to haunt us again and again if we do not act now to remove it. It is for this reason that I oppose Government amendment 6. If the clause is to stand, the protection given by proposed new subsection (4)(c) is essential. This allows an appeal where the upper tribunal has acted
“in bad faith, or…in fundamental breach of the principles of natural justice.”
This already heavily caveated exception—why bad faith rather than bias; why fundamental breach rather than material breach—will be compounded if the exception on natural justice is qualified by the phrase “procedurally defective”. I therefore ask the Government not to compound the offence and to drop their amendment.
I turn to chapter 4 of part 2, which deals with coroners, and to our new clauses 4 to 6. I make no apology for re-tabling these new clauses, which were discussed in Committee, as they address a burning injustice. But let me first make a brief comment about what is in the Bill.
The Government explain their proposals as a series of reforms to the coroners courts to improve their efficiency and help with the backlog. They mirror some of the provisions in other parts of part 2. We do not object to these in principle, but serious concerns have been raised about clauses 37 to 39. Clause 37 allows for the discontinuance of an investigation where the cause of death becomes clear before the beginning on an inquest. But the evidence for discontinuance may change once tested, and this could be significant, for example, where a death in the community appears initially to be from natural causes. Without the necessary safeguards, some deaths will not be properly scrutinised. Clause 38 gives coroners the power to hold inquests in writing where they decide that a hearing in unnecessary. This takes away a family’s right to request an in-person hearing. Clause 39 would enable remote attendance at inquest hearings. This has implications for accessibility, transparency, participation and open justice.
Taken together, clauses 37 to 39 risk further entrenching levels of coronial inconsistency, which is a continuing problem in the coroners service, and they could exacerbate the difficulties faced by bereaved families who are not eligible for legal aid in navigating the inquest process. I hope that we can return to these issues when the Bill moves to the other place.
The clauses also draw attention to what is not in the Bill. The Bill does nothing to address the ongoing and deeply unjust inequality of arms in the coronial courts. It misses the opportunity to put bereaved people at the heart of the inquest system by providing non-means-tested public funding for bereaved families at inquests where state bodies are represented. The current funding system for the bereaved at inquests is fundamentally unfair. State bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs or to represent themselves. Others have resorted to crowdfunding. The Bill presents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authorities, and public authority interested persons. New clause 4 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies are legally represented.
New clauses 5 and 6 would ensure that the early stages of legal help are available to the bereaved by removing the means test for legal aid applications and bringing the definition of family into line with that in the Coroners and Justice Act 2009.
We are well aware of the draft Hillsborough Bill and the 33-year battle for truth that those families fought. At the original Hillsborough inquest, families received no public funding for representation, while state bodies were represented by five separate legal teams. That led to the draft Hillsborough law, which would provide for a statutory duty of candour for public bodies alongside publicly funded legal representation for bereaved families. The time for that proposal not only has come, but is long overdue. I know that there is cross-party support here and in the other place. If the Government are not yet ready to address that long-standing injustice, we will divide the House on new clause 4.
In view of the shortness of time, I will have to impose, to start with, an eight-minute time limit. It may very well have to be reduced later.
I rise to speak on new clauses 8 and 9, which stand in my name and that of my hon. Friend Tom Hunt.
Those who served on the Bill Committee will not be unfamiliar with the arguments I intend to address, as we rehearsed them at considerable length in Committee. The Minister knows well my general concerns about the Bill: while it is a good start in dealing with the pressing issue of judicial review and how that has been distorted by recent judicial practice, it is only a start. We need much more wide-ranging reform of judicial review and, indeed, much more wide-ranging reform of the relationship between this House and the judiciary, as set out in the Attorney General’s recent speech in Cambridge on judicial activism.
New clause 8 addresses the courts’ role in curtailing the use of the Regulation of Investigatory Powers Act 2000, and especially in circumventing the role of the investigatory powers tribunal. I take a particular interest in that, having been the Minister at the Home Office who introduced the Investigatory Powers Act 2016, which deals with the necessary precautions and safeguards associated with the storage and retrieval of electronic data. Indeed, the Bill I took through the House introduced the double lock: all warrants, as well as being dealt with by the Home Secretary, are, as an additional safeguard, dealt with by a judicial commissioner. That safeguard was to ensure the core principles of proportionality and necessity, which lay at the heart of all considerations of that kind.
The problem is that the courts have taken it upon themselves to become involved in matters that should be the exclusive preserve of this House. It is very important to see the Bill in context. The supremacy of Parliament is fundamental to protecting the interests of the people. Parliament’s role in our constitutional settlement is not—as was suggested in an evidence session with Aidan O’Neill QC—a matter of mutuality.
Absolutely. The separation of powers does not deal with neutrality. It deals with different powers, which are, by constitutional arrangement, held by the courts and this place. The relationship between the two is critical. It is critical to our considerations today and more critical still to our constitution. A. V. Dicey argued that the separation of powers confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together. Therefore, as Dicey says:
“The principle of Parliamentary sovereignty means neither more nor less than this, that Parliament… has… the right to make or unmake any law whatever;
and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
That is precisely the point that my hon. Friend makes.
We need to reaffirm that principle in general and the Bill is an opportunity to do so. Any Parliament that makes a new law or repeals a law will be obeyed by the courts. That is fundamental to the role of this place. All of us who represent the people, as my hon. Friend says, have a duty, not just a mission, to reflect the will of the people.
Is not the point of judicial review to make sure the Government comply with the rules and restrictions set by Parliament? Restrictions on judicial review allow the Government to ride roughshod over Parliament’s views.
That is, of course, true, and it is why judicial review exists. The hon. Gentleman is right that there need to be checks and balances, but it is wrong to use judicial review to perpetuate matters of high politics or to perpetuate debates that have been settled in the country and in this place.
What we heard from the Minister when we debated these issues at considerable length is that, in effect, people are having several bites of the cherry. Debates were settled and then people came back to reopen them and revisit subjects that had already been agreed. That is not the role of the judicial process and it is certainly not the role of judicial review. The Bill goes some way to addressing that.
The purpose of my new clauses is to probe and press the Government to do more. I strongly urge the Minister to accept them with enthusiasm and alacrity because to involve the courts in matters of investigatory powers, as I said, is quite wrong. The landmark Privacy International case of May 2019 illustrates how wrong it can be. I will not go into detail because time does not permit, but other hon. Members will be familiar with the case and its legal ramifications. I recommend the Attorney General’s speech, which I have mentioned already, to those who want to find out more.
Professor Richard Ekins gave evidence to the Public Bill Committee, and he wrote an excellent paper on these subjects for Policy Exchange. He describes the Supreme Court’s judgment in respect of the Privacy International case as
“a very serious attack on some fundamentals of the constitution.”––[Official Report, Judicial Review and Courts Public Bill Committee,
For a very long time, it was not accepted that the courts should become involved in matters of investigatory powers, and particularly the tribunal. There was no possibility of judicial review for 19 years after the 2000 Act was passed.
Will my right hon. Friend confirm that these new clauses would, in effect, stop judicial review departing from a narrow focus on a particular public Act and becoming a free-ranging inquiry into Government decision making?
My hon. Friend makes the point more eloquently than I ever could, partly due to her expertise. The real point is that these cases have created the possibility of a much more wide-ranging rebalancing and reappraisal of the relationship between the courts and Parliament, without public consent—indeed, the public have not been consulted. That is not good for the courts. We want to maintain the integrity of the judicial process by affirming the characteristics they have long enjoyed that underpin the separation of powers. New clause 8 would not only do a great service to the cause my hon. Friend highlights, but improve the Bill and be in the courts’ own interest.
It is important to understand that new clause 9 has two parts. Subsection (1) aims to limit the extent to which judicial review proceedings involve the testing of evidence or resolving and disputing questions of fact. The traditional view is that judicial review proceedings are an inappropriate forum in which to solicit or test evidence because they are a supervisory jurisdiction that should focus on questions of law rather than questions of fact. Once again, what has occurred over time is that the courts have strayed into debates and inquiries about matters of fact rather than matters of law. That status quo prevailed for a very long time, but the role of the courts has altered. Furthermore, there has been a change in the application of judicial review in respect of evidence. The courts ought to be focused on the legality of a decision, as Stuart C. McDonald said, and whether it stands up to appropriate levels of scrutiny—that is the business of a judicial review. Judicial review is supposed to be a backstop, a check, of the kind he described in his intervention—
The difficulty I have with the right hon. Gentleman’s argument is this: where facts are in dispute, how can a court be expected to rule on a point of law without hearing evidence?
The court can take evidence, but what it should not be doing is fishing for further information, of a wider variety, which opens up consideration of the original process, rather than checking whether that process was right and proper; it is a subtle difference but a fundamental one in terms of the change in the way courts have gone about their business.
Our new clause addresses this issue, as the Minister will know. Jonathan Sumption is the judge who perhaps more than any other has set out the proper functions of the courts in relation to Parliament. In his Reith lecture, he said:
“It is the proper function of the Courts to stop governments exceeding or abusing their legal powers.”
That is absolutely what JR should be, but I fear that it is being compromised by the changes that are taking place as a result of judicial activism. So, mindful of the Attorney General’s advice on this and of the fact that the Government clearly are in tune with that advice—otherwise, they would not have introduced this Bill in the first place—I urge them to accept the amendments, in order to make this Bill be as good as it can be. Rather than waiting for another bus to come along, we should get on this one and get to the destination we all seek.
Much of this Bill has no impact on Scotland or our separate courts and legal system, so our amendments and my comments are focused on the parts that do, which primarily deal with judicial review. The parts of the Bill I will address today are not just bad; they are unnecessary and dangerous, and they lay the groundwork for the Government to insulate themselves and future Governments from proper scrutiny and accountability. I am sure that is on their personal wish list given current events, but we ought to make policy for generations, for everyone and not for one iteration of one political party.
I sat through 11 sittings of the Public Bill Committee and waited for the Government to persuade me that, for example, removing Cart JR was necessary, but instead I heard odds and sods of anecdotal evidence, lots of legal jargon and the phrase “three bites of the cherry” a total of 62 times, with the implication that somehow those using Cart JR had greater access to justice—that simply is not true. Cart JR is not about saying, “I don’t like the decision you've come to, let’s try again for a different judgement.” It is about looking at the situation where, first, a serious error of law may have been committed in the first-tier tribunal, and then the upper tribunal has failed to recognise and correct the error. It could be that the first-tier tribunal failed to consider or misinterpreted the evidence, or that the facts are inconsistent with the decision, but the point is: it happens, mistakes are made and Cart JRs provide a vital safeguard to correct these errors in cases where the stakes can be incredibly high. Rather than this being a “third bite of the cherry”, the reality is that the first bite was not even a slither—a mistake was made. Mistakes do not just affect the person in question; the ramifications are wider. Similarly, Cart JRs not only give one person who has appealed the opportunity to have their case considered properly, but they catch out errors and injustices, benefiting the system as a whole. Cart JRs have been used to ensure that disabled people are given the right benefit entitlement; they have stopped people being made homeless; and they have prevented the deportation of people to countries where they faced certain death. I am currently waiting to attend a first-tier tribunal on behalf of a family member. Given my knowledge of her and of the social security system, I am 100% certain of her entitlement and equally certain it will only fail if a mistake is made when considering the evidence. If that happens, surely my family member deserves the right to have it rectified—surely everybody has that right.
The thing is: the Government know that the impact will be far greater on those who are most vulnerable. In their own impact statement for this Bill, they admit that abolishing Cart would mean that
“those who do lose out…are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”
So anyone voting for this ought to be aware and be honest with their constituents that they are consciously voting to the detriment of their constituents with protected characteristics. It is estimated that this will save only £364,000 to £402,000 a year. That is the cost of protecting the rights of some of the most vulnerable people. It is not much to ask for, is it? Let us not pretend that this is about being prudent with the public purse after writing off £4.3 billion of fraudulent covid claims last year.
We will vote against this terrible Bill, but if it does go ahead, our amendments 42 and 43 would protect the Scottish courts and tribunals from clause 2. We in Scotland do not want it, the legal profession does not want it, the Scottish Government do not want it, and I guarantee that the people of Scotland do not want it. This Government are trying very hard to demonstrate their alleged respect for Scotland—in words if not in actions—as the Scottish Government lay the groundwork for an independence referendum; some would say, because of the independence referendum. Well, now is their chance. Now is the chance for all the parties in this place to show Scotland just how much respect they have for our separate and distinct legal system and our right to protect it, and ourselves, from this legislation.
My final thoughts on clause 2 relate to the way in which the Government intend to make this happen—the legal framework. The Government say that the use of an ouster clause will set a precedent for removing certain cases or areas out of the scope of judicial review, but what does that mean? It means that in future they intend to cherry-pick areas that they would rather not see judicially reviewed, which sounds every bit as dangerous as it is. The rule of law and the separation of powers are hallmarks of an effective democracy; we cannot allow the Government to pick and choose where and how they face judicial scrutiny. As Liberty reminds us in its briefing, this Bill is passing through Parliament at the same time as the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Elections Bill, to name but a few. Now more than ever, we need the ability and deserve the right to hold the Government and public bodies to account.
Clause 1, on suspended quashing orders and prospective-only remedies, does not extend to Scottish courts and will not apply directly, but it will affect UK-wide legislation to which we are all subject. It will also mean that many more people across these islands may choose Scottish courts, and while I am always happy to promote Scotland and our separate legal system, there may be a capacity issue that has not been discussed or even considered.
Along with others, I have raised the landmark Unison judicial review of 2017 a number of times. The Supreme Court agreed that the fees for access to justice via employment tribunals were unlawful, so everyone who had paid them was refunded, and the Government were no longer allowed to charge the fees from the moment of that judgment. Let us consider what would happen if the Bill were passed and if, instead of seeking a judicial review in 2017, Unison did so this year and, crucially, secured the same decision: the decision that the workers were right, and that what the Government were doing was unlawful. The difference is that if this Bill is enacted, no one initiating a judicial review will have their fees refunded and no one who has already been forced to pay up to £1,200 for an employment tribunal will be refunded either, despite the court’s agreeing that they have been subject to something unlawful. Anyone subsequently requiring an employment tribunal will still have to pay the unlawful fees, and in the meantime the Government will be able to tweak the legislation and make the unlawful lawful. Who would or could go to the expense and trouble of seeking a judicial review given the prospect of no remedy, no justice, and no change in their or anyone else’s situation?
The delaying of a quashing order is, in certain circumstances, the appropriate path to follow, and that is why the courts already have that option. The issue is that it is currently an option, and the clause seeks to make it a presumption. The Independent Review of Administrative Law, which has been largely ignored in respect of its recommendations for judicial review, suggested that “giving courts the option” was enough, but here we see the Government determined to fetter judicial discretion and tie the hands of judges. Our amendment would ensure that it would once more be the case that judges “may” rather than “must” use such delays, and if the Government continue to argue that they are not trying to tie the hands of the judges, they will surely support it tonight.
I am humbled today to be standing in this historic Chamber representing the people of North Shropshire. Those who have visited will know that it is a large and beautiful landscape populated with pretty market towns and villages and with a long and fascinating history.
I would like to start by thanking my predecessor, Owen Paterson, for almost a quarter of a century of service to the people of North Shropshire and, in particular, for his recent campaign and charitable work for suicide prevention.
It is impossible to visit North Shropshire without being taken back in time. An iron-age fort at Oswestry starts the story, as the first settlers here pioneered the farming industry that underpins the local economy to this day. In Welsh, the site is known as Caer Ogyrfan, meaning “City of Gogyrfan”, the father of Guinevere in Arthurian legend. The intertwined story of North Shropshire and British politics may have begun there.
The next step in our history is at Whitchurch, an important staging post on the Roman road to Chester. It takes its modern name from St Alkmund’s church, originally built with white sandstone quarried in the south of the constituency at Grinshill. And here the association continues—this fine white sandstone was also used to make the lintels and door surround of No. 10 Downing Street. I am sure the Prime Minister will be reminded of the beautiful constituency of North Shropshire each time he passes through that iconic entrance.
In the medieval period, Ellesmere’s great castle was taken by Llywelyn the Great, not to be reclaimed by the English until after his death. Its remains are now largely confined to the earthworks they were built on, but luckily, the fortifications at Whittington and Moreton Corbet still bear testament to the turbulence of life in the marches of the medieval kingdom.
Internal strife has played its part as well—in the early stages of the wars of the roses, the Yorkist army thundered past Market Drayton and through North Shropshire, eager to link up with reinforcements in Ludlow after its victory at nearby Blore Heath.
In the civil war, the residents of Wem, the town closest to my home, proved that the communities of North Shropshire are not just decent and resilient, but occasionally radical. It was the first town in Shropshire to declare for the parliamentarians in the civil war. The troops garrisoned in the town had not completed their wooden defences and had only 40 musketeers to hold their position in 1643 when the royalist army approached. The royalists, complacent and confident of victory, approached from Soulton to the east, but legend has it that the women of Wem rallied to the parliamentarian cause and the garrison held. So it seems that while I am the first woman to represent this area in Parliament, I am continuing a fine tradition of women in North Shropshire defending our democracy.
I am reminded of the brave women of Wem when I consider the impact of this Bill. I am sure that colleagues on both sides of this House would agree that our democracy, which has evolved over hundreds of years, and since the 17th century largely peacefully, should be protected at all costs. Fundamental to that democracy is that the rule of law is upheld without fear or favour, but this Bill seeks to undermine that principle. It will limit the ability of ordinary people to hold this Government to account through the courts.
Judicial review is working well. It is a powerful tool for individuals to enforce their rights and stop Governments from overstepping their powers. Abolishing Cart judicial review, for example, would remove a safeguard when tribunals make mistakes in cases where the stakes are often extremely high for the people involved. It is completely unjustified and a backward step. That is why my Liberal Democrat colleagues and I are supporting amendment 5 in the name of my hon. Friend Wera Hobhouse.
Threatening to weaken the people’s ability to challenge the Government because the courts sometimes rule against them is the act of dictators and despots, not democrats. The best way for a Government to avoid that situation is to ensure that they act lawfully in the first place, not legislate to ensure that there is one rule for the citizens of this country and another for its leaders. The circumstances of my election suggest that the majority of voters in North Shropshire would agree.
As their representative on these green Benches and in the home of democracy, I will always defend their democratic rights and listen to their concerns, regardless of the candidate for whom their vote was cast. I will not give up on the fight for the issues that matter most to them: better access to health and ambulance services, a fair deal for our farming community, and proper provision of infrastructure and public services in rural areas. I very much look forward to working with my colleagues on both sides of this House to achieve that.
I would like to congratulate Helen Morgan on her wonderful maiden speech and welcome her to her seat in this place. She talked about this historic Chamber, but of course she herself has made history by being the first Lib Dem and the first female MP in that seat. I wish her all the very best in her endeavours to represent her constituents.
Opposition Members have studied this Bill closely. There are currently many Bills on the Government’s legislative agenda that give much cause for concern. This Judicial Review and Courts Bill may not occupy as high a profile as others, but nevertheless there is much in it that I and other Opposition Members want to see significantly amended. I fear that this Government’s mantra of obsessing over costs and superficially driving for efficiencies will negatively impact the judicial process. Of course, this may be politically expedient for the Executive, who have demonstrated time and again their desire to avoid accountability, but we cannot do justice on the cheap. The consequences for ordinary people for the processes that deliver just outcomes will be grave.
I want to place on record my support for two significant amendments. First, those on my own party’s Front Bench are right to support amendment 23, which would remove clause 1 from the Bill entirely. Quashing orders are a powerful tool for ensuring that unlawful Government decisions can be overturned and that those who have suffered the consequences of unlawfulness can obtain real redress. There are already limitations on a court’s ability to grant a quashing order, but I suspect the Government know that. To tip the scales even further in favour of the Executive is wholly wrong.
I also want to voice my support for amendment 5, tabled by our Liberal Democrat colleagues, which would remove clause 2 from the Bill. It is essential that we preserve the ability of claimants to seek judicial review of a decision made by the upper tribunal. The Supreme Court recognises that some overall supervision of the decisions of the upper tribunal safeguards against the risk that errors of law of real significance could slip through the system. Doing away with Cart judicial review runs the risk of us getting things wrong on matters of life and death. No matter how infrequently decisions are overturned, a safety net that is rarely used is still a safety net. In the words of Lord John Dyson:
“In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”
Organisations such as the Public Law Project are clear that Cart judicial review represents excellent value for money, despite the Government’s shallow arguments around cost. According to the Public Law Project, the total cost saved by abolishing the Cart jurisdiction is estimated at between £364,000 and £402,000 a year. Usefully, it has also provided context, telling us that this is less than the amount the Department for Digital, Culture, Media and Sport spent on its art collection in 2019-20.
Part 1 of the Bill represents a very real degradation of the right of citizens and organisations to hold the Executive to account. The last thing our state needs, not least during this time, is to have fewer safeguards in place, especially in the area of justice, with the likes of the Home Office currently pursuing a nonsensical approach to asylum that plays only to the court of political opinion and not to the fundamentals of human rights.
Several of the new clauses have my wholehearted support, particularly new clauses 2 and 4. We will be discussing new clause 2 in the next debate. It goes without saying that, as a Liverpool MP, I enthusiastically support new clause 4. Going up against the establishment is extremely daunting for ordinary working people, even when the gravest of wrongs have been committed, sometimes by institutions that are funded by—and should be accountable to—the public. When looking at legislative matters relating to justice, we must always make justice accessible so that justice can be done, and done in a timely manner. Public institutions cannot rely on their vastly greater resources to deny justice and closure to those who simply seek a level playing field. New clause 4 would rectify that.
There is a lot of bad in this Bill as it stands, and a lot not that is not yet in it. The Government must not be partisan when it comes to justice. Right and wrong supersede political alliances. For that reason, the Government should take seriously many of the amendments before us today.
I rise to speak to amendments 1 to 3, 5 and 37, which stand in my name and those of other hon. Members. My sponsorship of these amendments arises from the legislative scrutiny of the Bill conducted by the Joint Committee on Human Rights. The Mother of the House, Ms Harman, who is the Chair of the Committee and who would normally speak to these amendments, cannot be here today because of her bereavement. I extend my deepest sympathies to her and her family, and I pay tribute to her late husband, the former Member for Birmingham, Erdington, who was a widely respected and loved man.
I remind hon. Members that the Joint Committee is a cross-party Committee, with half its members from the Commons and half from the other place, and we undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence from a number of people on this Bill, and we have been advised by our own legal experts. On
“not guarantee that an individual would receive an effective remedy for a violation of their human rights.”
We recommended that the Government remove the requirement in the clause
“as it amounts to an unnecessary…intrusion into judicial remedial discretion.”
As I say, that is an informed view reached on a cross-party basis after taking evidence, and that would be the effect of amendments 1 to 3 if they were passed.
If amendments 1 to 3 are not passed, there is a fall-back position. We also recommended that the Bill be amended so that the courts would have to have regard to the convention rights of any person who would be affected by such a decision and the duty to provide an effective remedy for a human rights violation under article 13. That would mean that when courts decide to make a quashing order with suspended or prospective-only effects, convention rights would be required to be taken into account. That would be the effect of amendment 37, which I reiterate that we see as a fall-back if amendments 1 to 3 are not passed.
I turn to clause 2. The Joint Committee shares the view articulated by my hon. Friend Anne McLaughlin about Cart judicial reviews. We reached the conclusion that judicial supervision of the upper tribunal protects against legal error. Only a small proportion of Cart judicial review applications are successful, but in some of them, individuals could be prevented from being wrongly removed from the United Kingdom to face the most heinous human rights violations in other countries.
We said that rather than taking a hammer to crack a nut in that way, the Government should
“introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases.”
We also said that
“every effort must be made” to ensure that the initial decision-makers and the first-tier tribunal
“make the best possible decisions when cases are before them”.
That would limit the need for asylum seekers to rely on a third opportunity to have their application for permission to appeal considered, and it would be the effect of amendment 5.
Generally on ouster clauses, which other hon. Members have spoken about this afternoon, the Joint Committee on Human Rights said in our report:
“We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation”.
Clearly, we are concerned about the possibility of undermining the rule of law, which is essential for the protection and enforcement of human rights.
Before I sit down, I want to give my personal support to the amendments tabled on behalf of the Scottish National party, and to reiterate what I said on Second Reading. It is not constitutionally appropriate for the exclusion of review of upper tribunal permission to appeal decisions to extend to Scotland. The Under-Secretary of State for Justice, James Cartlidge, who is in his place, has conceded to me in a letter dated
The Minister will say, “Oh no—it is not a contravention of article 19 because it’s a regulation for the better administration of justice.” I am sorry, but in Scotland we do not see regulations that circumscribe the availability of justice to individual members of the public as something for the better administration of justice. The Law Society of Scotland has been clear that a legislative consent motion is required; none has been sought, and none would be granted for an interference with the jurisdiction of the Court of Session.
Finally, as I said on Second Reading, there is no evidence base for there being any mischief in Scotland in relation to Cart judicial review; we actually call it Eba judicial review because of our case. The evidence base that the Government presented was completely confined to cases in England. If clause 2 passes, that will just be another example of this Government overriding the devolved settlement, undermining the Union. Please, Minister, leave Scotland’s legal system to Scotland’s Parliament, where it belongs.
There has been a lot of turmoil on the Government Benches over the past few weeks—partygate, allegations of blackmail and now Islamophobia. But one thing remains consistent and there is one thing we can count on: the Government have their eyes set on authoritarian rule.
Just look at the recent legislation brought before this House. The Nationality and Borders Bill grants the Government power to strip citizenship without notice. The Elections Bill imposes mandatory voter ID, discriminating against deprived and disadvantaged communities. The Police, Crime, Sentencing and Courts Bill gives the Government the ability to suppress protest that they deem too noisy.
The Government’s own manifesto promised to protect the individual from an overbearing state, yet this Bill does the opposite, fortifying the Government’s power grab. Judicial review enables individuals to challenge the legality of decisions made by public bodies. It ensures that decisions are made in the right way. When honoured, it is a vital process in checking the power of the Government and it is often the sole key to justice for the most vulnerable.
Without judicial review as it stands, EU citizens would have been deported for rough sleeping, innocent NHS staff would have lost their pensions and a child’s cardiac surgery clinic would have been unlawfully shut down. But instead of strengthening judicial review, this Bill strangles it.
Clause 1 incentivises the use of prospective-only quashing orders. That would mean that when a judge overturned a decision that they deemed illegal, justice would be available only for subsequent claims going forward. The judgment would no longer be retrospective. Past victims hurt by illegal decisions would receive no compensation. That does not sound fair or right to me. This measure hollows out the power of judicial review and inevitably means that more justice will be left unaddressed. In fact, as Mr Davis said, the proposals
“tip the scales of law in favour of the powerful.”
Is that not the story of this Government—more money for the wealthy and powerful and an absent hand for those who need it the most? The whole point of a democracy is that the state should not be able to steamroll its citizens, particularly the most vulnerable.
Just a little reminder: it is important to refer to the amendments as well as the clauses in the Bill, as we are at that stage of the proceedings.
I take this opportunity to welcome my new colleague, my hon. Friend Helen Morgan, to these Benches. I congratulate her on the excellent speech she made today.
I rise to speak to the Liberal Democrat amendments 1 to 5. The Government claim that the Bill will ensure that judicial review is available to protect the rights of individuals against an overbearing state, but it will have quite the opposite effect. As Amnesty International and others have pointed out, the Bill will tie the hands of the judiciary in respect of what remedies they can order when public authorities act unlawfully. It will weaken the courts’ ability to ensure that justice is done and that human rights violations are remedied.
Judicial review is a powerful tool for people to enforce their rights and is often used by the most vulnerable when no other form of legal redress is available. Clause 1 introduces prospective-only remedies in judicial review, which could be hugely harmful for those seeking justice and is opposed by the Law Society, JUSTICE, the Public Law Project and Liberty. It would not only deny redress to someone who has been harmed by unlawful action by a public body, but actively serve as a disincentive to those seeking justice through judicial review.
Let us imagine a person who has been incorrectly deemed ineligible for welfare benefits who has successfully challenged that decision through judicial review. A prospective-only remedy would mean that they would not receive the back payments that were unlawfully denied to them. They would not receive justice, which should never be the outcome of our judicial system.
Prospective-only remedies would also have a damaging effect on good governance. As Liberty rightly says:
“Being able to challenge those in power when they get things wrong is at the heart of our democracy.”
If public bodies are spared the risk of retrospective legal consequences, the motivation for good decision making is lower. I urge hon. Members to support amendments 1 to 4, which would remove that damaging aspect of the Bill.
Clause 2 is particularly concerning, because it would permit the courts to abolish Cart judicial reviews, as we have already heard this afternoon, which removes a vital safeguard in situations where tribunals make mistakes. The vast majority—92%—of Cart judicial reviews are immigration and asylum cases, and many of the remaining cases concern access to benefits for disabled people and those facing destitution. In all those situations, the stakes are incredibly high for the people involved.
Cart judicial reviews are not about having a third bite at the cherry, as many Conservative Members have claimed—far from it. They are granted only in situations where the claimant was never given a proper first bite, when a serious error of law was committed in the first tier tribunal and not corrected by the upper tribunal. There can be no justification for abolishing them and amendment 5 removes the provision from the Bill completely. I urge hon. Members to back it.
I will quickly touch on the clauses that introduce the automatic online conviction and standard statutory penalty. Liberal Democrats support the aim of reducing backlogs but, as JUSTICE argues, there are better ways of deploying technology in the criminal justice system. We therefore need an independent review of the likely impacts of the AOCSSP before it is introduced. Elements of the Bill are hugely concerning. I hope that through these amendments, we can remove its most damaging provisions.
I warned on Second Reading that the Bill is, by the Government’s own admission, the thin end of the wedge that opens the door to more restrictions on judicial review in future. New clauses 8 and 9 in the name of Sir John Hayes show what the thick end of the wedge would look like. We oppose those new clauses, which would make the Government’s bad Bill even worse.
This is just another Bill in the Government’s programme of constitutional reform that weakens the institutions and rights that hold the powerful to account. The Police, Crime, Sentencing and Courts Bill attempts to restrict the right to peaceful protest and the Elections Bill disenfranchises thousands of people from marginalised backgrounds in the name of preventing voter fraud, when there is no evidence of that happening on a large scale. That is not to mention the Government’s contempt for the Human Rights Act. Nobody, not even Governments, is above the law. The Liberal Democrats will continue to stand against any attempt to weaken the institutions and rights that hold the powerful to account.
I rise to speak to a number of amendments and new clauses, in particular new clause 4, which corresponds with the commitment in the 2019 Labour manifesto to ensure legal aid for inquests into deaths in state custody—a commitment first announced in February 2019 by my hon. Friend Richard Burgon in his former role. Closely linked are new clauses 5 and 6, which I also want to mention. The justice charity Inquest has been campaigning for decades for bereaved families to be granted automatic non-means-tested funding for legal representation following state-related deaths.
I support amendments 1, 2, 3 and 23, which are about removing the provision to make quashing orders suspended and prospective only. I place on the record my strong opposition to the removal of Cart judicial review and, as such, I support amendment 5 to delete clause 2 entirely. Amendment 25 speaks to the problem that campaigners have with the prospective-only remedies that the Government are proposing, in that they leave many successful claimants with no effective remedy. On amendments 27 to 30, I agree with Liberty, who argue that, although it supports the amendments, the very fact that so many changes are required to mitigate the harm of the provisions, alongside the lack of any need for their introduction, shows they would be better off discarded altogether.
That brings me to the thread that runs through the amendments, and the crux of the dangers of the Bill as a whole. The legislation before the House today removes vital safeguards that protect often marginalised people, especially migrants, from mistakes being made by public bodies—mistakes that could have a catastrophic impact on their lives. I want to highlight an example of what I understand that to mean and to flesh out one of the many human consequences at stake by talking about disability benefits.
Around four out of five cases where a claimant has been denied disability benefits are overturned on appeal. Why? As we know, serious concerns have been raised about the key measures introduced in the Welfare Reform Act 2012—the replacement of the disability living allowance with the personal independence payment, a new sanctions regime and new assessment processes for employment and support allowance. Even a United Nations inquiry said there were “grave or systemic violations” of the rights of disabled people, in reports to the Information Commissioner concerning the deaths of claimants following their work capability assessment finding them fit for work.
It has been clear for many years that the assessments in particular are not fit for purpose and in many cases are actively harmful to the people who are subjected to them. In some cases, a decision not to award a PIP has been overturned by a tribunal after it had taken account of medical evidence from doctors about the claimant’s condition that had been ignored by officials during the initial assessment.
I am conscious that each of the many thousands of incorrect decisions about what support a disabled person should be getting causes real suffering to that person and to their family and friends. I support the growing calls for an independent inquiry to investigate why claimant deaths are happening, and for the scale of such deaths to be properly understood. The Conservative austerity program of cutting costs through so-called welfare reform has been brutal. We need to scrap the dehumanising work capability and PIP assessments and pursue the social model of disability, removing the barriers constructed by society and ensuring that disabled people can participate fully and equally in our society.
During the covid-19 pandemic we have seen further failures in providing proper financial and practical support to disabled people and their families, which have led to many being denied the support needed. The Government’s strategy in responding to the pandemic has led to many thousands of avoidable deaths, and it is important to recognise that disabled people form a large proportion of those deaths. Yet, perversely, and with a heartless callousness that is breath-taking, the Government’s answer is not to address the widely recognised abomination that is their treatment of people with disabilities, but to seek to further attack their rights—to obscure scrutiny, truth, and justice.
It is no coincidence that as the Government look to water down people’s power to challenge the state, a number of groups are using that power to hold them accountable. Indeed, a host of high-profile court cases, on disability rights, as I have addressed in my comments today, to police violence and climate change, are seeking to challenge the Government’s decisions. I wonder whose side history will come down on in the end—those who challenge injustice and power, or the perpetrators of injustice and power seeking to avoid accountability? We will resist this Government’s attacks on our communities and our rights, and we will overcome.
May I start by picking up a point that Helen Morgan made in her excellent maiden speech, on which I congratulate her? If nothing else, recent events reassure us that our constituents quite rightly do not like the Prime Minister, the Government or any public authority operating as if they were above the law or as if the rules that we all have to follow do not apply to them.
Although the Bill may not attract as many headlines as the various partygate stories, it raises the same issues, but in a much broader and more profound way. The Conservative Government are once again trying to put themselves above the law and make sure that basic principles of administrative law and rules passed by this Parliament do not constrain them. That will be the impact of the first two clauses, so I fully support all the amendments that seek to leave out or ameliorate them. I adopt all the arguments that my hon. Friend Anne McLaughlin and all Opposition MPs have put forward today.
I would like to take on the argument made by the Attorney General and others that the Bill is about parliamentary sovereignty, as troubling and overrated a concept as that is. The Bill does not assert the sovereignty of Parliament; it promotes untrammelled Executive authority. It is not about ensuring that Parliament’s will is respected, but about Government and public authorities being able to exceed or ignore the rules and restrictions that Parliament has placed on them. For us to vote for the Bill would be not so much an exercise of parliamentary sovereignty as an exercise in parliamentary stupidity, inviting the Government to ignore the limits we place on them and helping to exacerbate what Lord Hailsham called elective dictatorship.
My main point relates to Scotland and to amendments 42 and 43, which I support. To build on points made by my hon. and learned Friend Joanna Cherry, it is absolutely not for this Parliament to impose clause 2 and changes to Cart and Eba judicial reviews on Scotland’s legal system. As the independent review of administrative law made clear, judicial review is a devolved matter. The review’s report was absolutely clear that it would be for the institutions of devolved government to decide whether to follow its recommendations. Without exception, every single submission from a devolved jurisdiction was opposed to, or at least not persuaded of, the need for reform.
Scotland has undertaken its own reform of judicial review in recent years. For this Parliament to interfere with it risks setting up two parallel systems of review in our jurisdiction, whereby someone challenging a devolved social security decision might face totally different obstacles from someone challenging a reserved social security decision. Again, the independent review was clear, describing such a two-tier system as “highly undesirable”. As my hon. and learned Friend alluded to, the analysis of judicial review in Scotland in the review is limited, as its authors acknowledge, but none of the overall judicial review figures cited—less than 400 cases commenced each year, of which less than 50 make it to a hearing, with 30% successful—justifies these rather obnoxious proposals.
The Joint Committee on Human Rights and the Law Society of Scotland have both concluded that there is “no evidence” of any problem in Scotland that needs this Government to interfere. They, too, confirm that this is a devolved issue. In its briefing on the Bill as long ago as Second Reading, the Law Society of Scotland set out that, unusually, there are two grounds for arguing that the Government should not bulldoze these provisions through: not only are they legislating on a devolved matter, Scots private law, but they are narrowing the competence of the Scottish Parliament because clause 2 creates a rule special to a reserved matter and the Scottish Parliament does not have the competence to abolish or modify such a rule. It is a double whammy.
Indeed, for reasons that my hon. and learned Friend set out, it is a triple whammy. As was pointed out to the Government review panel, the Scottish competence of judicial review derives from article XIX of the Acts of Union of 1706 and 1707. The Law Society of Scotland warned the panel that
“care always has to be taken so as not to render the Court’s”— the Court of Session’s—
“jurisdiction in judicial review ineffective”, and that if reforms in the area go too far, they may
“be in breach of the Acts of Union”.
I object to the whole purpose of part 1 of the Bill, but even if the Government insist on pressing ahead, the overwhelming view from Scotland is “Get your hands off our judicial review laws.” That is why everybody in this House should support amendments 42 and 43.
I am grateful to all Members who have contributed to the debate so far. In particular, I congratulate Helen Morgan on an excellent maiden speech. I know that part of the country well and she described it aptly: it is both historic and beautiful. I wish her well in the months ahead.
Let me turn to the amendments, of which there are a great many so I shall have to try to canter to some degree. I shall start with new clauses 4 and 5, on coroners inquests. As Members will know, and as I set out in Committee, I am sympathetic to the difficulties that face all bereaved families, and the Government believe that affected families should be at the heart of any inquest process that follows. The coroner’s investigation, including the inquest, is an inquisitorial fact-finding process—a narrow-scope inquiry to determine who the deceased was and how, when and where they died. That means that for the vast majority of inquests, legal representation and legal aid are not necessary.
New clause 4 seeks to expand access to legal aid at inquests, which would run counter to the approach I just set out. There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a complex defensive case, thereby prolonging the distress of a bereaved family.
On new clause 5, legal help for advice and assistance in relation to inquests is already within the scope of legal aid, and the Legal Aid Agency already has the discretion to waive the eligibility limits if it considers it equitable to do so.
On new clause 6, for bereaved families who need legal help, advice and assistance is already available under the legal aid scheme, subject to a means-and-merits test. That provision includes relatives by marriage or civil partnership, cohabitants and those who have parental responsibility.
In respect of the new clauses, which relate to important areas of law, I stress that the Government have been working on several measures to make inquests more sympathetic to the needs of bereaved people. So far we have engaged with the Chief Coroner on training for coroners and their investigating officers; we have published new guidance on coroner services for bereaved people; we have developed a protocol that, among other matters, ensures that when the state is represented it will consider the number of lawyers instructed so as to support an inquisitorial approach; and, building on the protocol, we have supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests.
As I said, for bereaved families who do need legal help, advice and assistance is always available under the legal aid scheme, subject to a means-and-merits test. For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme if certain criteria are met. The Government are of the view that when those criteria are met, the process should be as straightforward as possible, not least given the stressful circumstances that bereaved families face. With that in mind, as of last month there is no means test for an exceptional case funding application in relation to representation at an inquest, or for legal help at an inquest if representation is granted.
We are also carrying out a review of the legal aid means test as a whole, and that review will be published shortly. Given the ongoing work that the Government are undertaking to support the bereaved at inquests, I urge Andy Slaughter to withdraw the new clauses.
Let me turn to the important matters of judicial review. I agree with the sentiment behind amendment 30: judicial review is indeed an integral part of the UK’s constitution and no Government of any colour should seek to make changes to the way the law on judicial review operates in a way that is unnecessary or disproportionate. However, I assure the House that nothing in the Bill limits judicial review in such a way and the amendment is unnecessary.
Will the Minister comment on the assessment that the judicial review on the shortages of personal protective equipment for health workers would not have taken place had this legislation been in place?
The point is that these matters are entirely for our independent judiciary. The judiciary will make the judgment on whether the powers in the Bill should be used. I would not want to speculate on whether they would have been used in individual cases; that is not my role as a Minister. We have to have faith in how the judiciary will deploy what are, after all, new flexibilities—as we say, new tools in the judicial toolbox.
Let me move on to the new clauses tabled by my right hon. Friend Sir John Hayes. New clause 8 seeks to re-establish the ouster clause, in response to a 2019 Supreme Court judgment that asserted that certain decisions of the investigatory powers tribunal would not be subject to judicial review by the High Court. My right hon. Friend knows that we are sympathetic to and see merit in what he says, but we think this is not the right Bill or time, given the complexity involved. We want to look into the matter further, though. I was pleased to discuss it with my right hon. Friend in Committee and would be pleased to meet him further.
There are two new clauses, and I am sure the Minister is going to deal with the second one, but the issue of evidence is particularly important, as he will know. Allowing cross-examination on the introduction of new material that was not pertinent to the original decision is not about checking matters of law, but about rehearsing matters of fact and perhaps even going on a fishing expedition for new facts. On investigatory powers, he knows how important it is that the tradition maintained for 19 years is maintained and that the courts simply do not get involved in those matters.
My right hon. Friend makes his point, but given what happened with the Supreme Court, I am sure he would agree that, if we did legislate, we would have to get it right. We feel we want to take our time and ensure that that is the case, but I sympathise with the broader point he makes.
On new clause 9, I would like to reassure my right hon. Friend that the Government are keen to ensure that the duty of candour is not invoked by claimants to rouse political debates or to discover extraneous information that would otherwise have been kept confidential. However, we are not entirely persuaded that primary legislation is the best way of tackling any issues that there might be. As we have said, we are attracted to the independent review’s recommendation that, should it be necessary, the issue could be addressed through changes to the Treasury Solicitor’s guidance. Although that is of course a matter for the Treasury Solicitor, the advantage of using guidance to address some of the issues that have occurred with the duty of candour in the past is that it can be more flexible and dynamic than legislation. On that basis, I am afraid I cannot accept my right hon. Friend’s new clause, but, as I say, we do see merit in what he says.
Turning to amendment 23, which seeks to remove clause 1 of the Bill, the intention behind clause 1 is to address the very practical issues of the courts currently not having sufficient flexibility in deciding on remedies in judicial review. To remove it from the Bill would be to uphold the unsatisfactory status quo, ignoring the findings of the independent review of administrative law, and the Government fundamentally believe that that would be a mistake.
Amendment 1 and amendments 2 and 3, which are consequential on amendment 1, would remove one of the new tools we are proposing—namely, prospective-only quashing or quashing with limited retrospective effect. Let me remind the House of an example I have used previously of a real situation where the existence of the remedy could have been useful. It occurred when Natural England, in response to a threatened judicial review, decided to revoke general licences enabling farmers, landowners and gamekeepers to shoot pest birds. The revocation created immediate chaos for licence holders. I do not seek to re-litigate this case in the Chamber, but as I have said before, had the proposed remedies been available, Natural England may have been more willing to contest the judicial review, knowing that even if the existing licensing scheme was found to be unlawful, the court had the ability to protect past reliance on old licences. Such cases provide a tangible example of how more flexible remedies will allow courts to respond pragmatically and assist our constituents, rather than detract from their interests.
Amendment 31 would remove the ability of a court to make a suspended or prospective-only quashing order subject to conditions, and the ability for courts to give conditions can be important and is not unusual.
Amendments 4, 27, 38 and 25 all seek to remove or weaken the presumption in some way. Characterising the presumption as seeking to control the courts or remove their discretion is misleading, as I said back in Committee. My view is that including the presumption, combined with the list of factors in clause 1(8), will make the decision-making process consistent and thorough. That will assist in the speedy development of jurisprudence on the use of the new remedies, which has to be in the interests of justice for all the parties.
Amendments 28, 32, 33 and 35 all relate to the factors courts must consider in applying these new remedies. I would like to reiterate that the list of factors is there as a useful guide to the courts when considering the new remedies. It will help the jurisprudence to develop in a consistent manner. It is a non-exhaustive list, and not every factor will be relevant in every case. We trust the courts will understand that and apply the factors appropriately.
Turning to the remaining amendments to clause 1, amendment 34 proposes that there should be a specific requirement for a court to consider the effect these new remedial powers have on a claimant receiving a timely remedy. In fact, subsection (8)(c) already requires the courts to take into account the interest or expectations of those people who would benefit from a quashing, and I would submit that includes considering timeliness. Likewise, on amendment 24, the protections built into clause 1 mitigate the risk of a court being compelled to use the new quashing order powers where to do so would be against the interests of justice. Subsection (9)(b) of proposed new section 29A of the Senior Courts Act 1981 makes it clear that the court is only obliged to use the new modified quashing orders where it
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”, and is not obliged to use them where
“it sees good reason not to do so.”
I submit that the concerns raised in amendment 26 are already mitigated by the drafting of the provision. The list of factors includes
“the interests or expectations of persons who would benefit from the quashing” and
“any other matter that appears to the court to be relevant.”
Additionally, having considered those factors, the court can add any conditions to the quashing order. It could be, for instance, that the Government do not take any further action to enforce the unlawful decision.
Amendment 29 seeks to clarify that the principle of good administration includes the need for administration to be lawful. We would have thought that that was fairly obvious, and should always be the case.
Amendment 37 seeks to ensure that the courts take into account affected people’s rights under the European convention on human rights, including the right to an effective remedy under article 13 of that convention. I would argue that the requirement in the Bill for the courts to have regard to the interests or expectations of persons who would benefit from the quashing of the impugned act would include having regard to any remedy and its appropriateness.
I now turn to clause 2, and amendment 5 which seeks to remove clause 2 from the Bill. I remind the House of the arguments that I made in support of this necessary and proportionate measure in Committee. First, the Cart JR route essentially equates to a third bite at the cherry—a phrase that we probably have overused, but which I think to the uninitiated explains it very well—after both the first-tier tribunal and the upper tribunal have refused permission to appeal. Secondly, it is the Government’s responsibility to ensure that judicial resource is efficiently distributed. The success rate of Cart JRs is very low—around 3.4%, compared with 30% to 50% for other judicial review cases—indicating that it may not be the best use of judicial time.
Will the Minister accept that it is often a matter of life and death, and that therefore his argument does not really stick?
Those matters should be determined with—I hate the phrase—two bites at the cherry, which is common across most areas of law. That is perfectly adequate. The process takes up 180 days of High Court judges’ time on case with almost no chance of success. High Court judges’ time, in the context of the backlog we have, is very precious indeed.
I now turn to the amendments 43 and 42, tabled by Anne McLaughlin. Just to be clear, the unified tribunal system, created by the Tribunals, Courts and Enforcement Act 2007, is a reserved matter where it relates to matters of reserved policy. The measures on Cart and, particularly in relation to Scotland, the Eba case will apply to the unified tribunal system within the UK, but it will not apply to matters heard that would fall inside the legislative competence of the Scottish Parliament and it will also not apply to devolved tribunals.
I am sorry; I have one more important Government amendment that I wish to cover. I apologise to the hon. Gentleman.
If the measure did not extend to Scotland even on matters that are not within the legislative competence of the Scottish Parliament, that would create an inconsistency within the unified tribunal framework based purely on geography.
Finally, the group also contains Government amendment 6 to clause 2. Subsection (4) of new section 11A sets out a number of exemptions, circumstances in which the supervisory court could still review a decision of the upper tribunal to refuse permission, or leave, to appeal the decision of the first-tier tribunal. One of those exemptions, subsection (4)(c)(ii), is if the upper tribunal acts in
“fundamental breach of the principles of natural justice”.
Clarifying the meaning of the natural justice exemption is the intent of the amendment. The Government accept that the meaning of natural justice is currently established in case law and relates to procedural impropriety. However, the understanding of the term has developed over time through common law and could develop further in the future.
As our intention is for substantive procedural errors to remain reviewable but errors of fact or law to be ousted, it is the Government’s view that the wording would be clearer if the amendment referred to procedure in the context of natural justice. That is not a change of policy; it is how the Government, and I am sure the majority of right hon. and hon. Members present, understood the clause during our previous debates and votes. However, this clarification should confirm to the courts exactly how Parliament intends the ouster clause to be interpreted.
Question put, That the clause be read a Second time.