Clause 18

Tribunals, Courts and Enforcement Bill – in a Public Bill Committee at 1:15 pm on 15th March 2007.

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Limits of jurisdiction under section 15(1)

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 55, in clause 18, page 15, line 3, leave out ‘to’ and insert ‘, 2 and’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss amendment

No. 56, in clause 18, page 15, line 16, leave out subsections (6) and (7).

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

This clause is important and we have decided to table some amendments to it, because there is an overwhelming argument for judicial review cases in the upper tribunal to be heard only by a High  Court judge. There was substantial debate about that in the other place. Clause 18(8) says:

“a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or...such other persons as may be agreed from time to time between the Lord Chief Justice” and so on. This amendment seeks to delete paragraph (b) which gives power to appoint someone other than a High Court judge. Why do we feel strongly about it? For a number of reasons—

Photo of John Bercow John Bercow Conservative, Buckingham 1:30 pm, 15th March 2007

Order. I fear that the hon. Gentleman is eliding into another group of amendments with which the Committee is not currently dealing. I am sure that he has done so inadvertently. I say that in the most courteous terms and hope that he will focus on amendments Nos. 55 and 56.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I will most certainly do so, because you are absolutely right, Mr. Bercow, to correct me. Subsections (6) and (7), which we are seeking to remove, lead on to the next group of amendments. Forgive me for entering into a wider discussion about High Court judges.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

The amendments would remove the ability of the High Court to transfer any class of case to the upper tribunal for the purposes that we have already started to discuss. It would be for the Lord Chief Justice, with the agreement of the Lord Chancellor, to designate classes of cases for which the upper tribunal would have sole responsibility and for the High Court to decide other cases, as and when they arise. That seems the right balance. The initiative is with the judiciary throughout, which again seems correct.

If the amendments were carried, it would not be possible for a class of cases to be transferred. The whole power would not have been excluded, but it would have to be exercised on a case-by-case basis. That seems a wasteful use of judicial resources. As I said, the power is intended to be used only in fairly technical cases. Classes of cases would be more likely to be moved when there were good technical reasons to do so and not otherwise. It seems sensible to have that power so that a tranche of cases, which might be similar or which might have the same technical components, could go over at once, instead of each case having to be considered separately.

The Lord Chief Justice is content that he can define a class of case of this nature. Therefore, we should not gainsay that by saying that each and every individual one ought to be considered separately. I hope that it is the judiciary’s approval and support, which I have now brought to the Committee, that will facilitate the hon. Gentleman’s seeking to withdraw his amendment.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I apologise for jumping the gun. I did not look closely enough at the groupings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment No. 57, in clause 18, page 15, leave out line 23.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 58, in clause 18, page 15, line 25, leave out from ‘Session’ to end of line 29.

No. 59, in clause 19, page 16, line 13, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 60, in clause 19, page 16, line 15, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 61, in clause 19, page 16, line 37, at end insert—

‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.

No. 62, in clause 19, page 17, line 1, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 63, in clause 19, page 17, line 3, leave out ‘and 4’ and insert ‘, 4 and 5’.

No. 64, in clause 19, page 17, line 25, at end insert—

‘(8) Condition 5 is that the application would, if transferred, be heard by a tribunal complying with section 18(8) of the Tribunals, Courts and Enforcement Act 2007.’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I certainly take the view that it makes sense to refer judicial review matters to the upper tribunal. The Opposition broadly support what the Government are trying to do. We feel that it makes sense and in some ways is an overdue step.

Nevertheless, this is an area of great importance. In the past, the power to grant judicial review has been confined to the High Court. We should look at the phrasing of the Bill and the way in which the term “judicial review” has been put in inverted commas in clause 15. The reason why judicial review is so important is that it allows the individual citizen to challenge the decisions of Departments and of other public bodies. Judicial review cases are often extremely high-profile. One thinks of certain recent cases that have hit the headlines, and of the occasions when previous Home Secretaries have been overruled on judicial review, such as when Mr. Justice Collins overruled the Home Secretary on a matter of anti-terrorist law.

Given the history of judicial review and its importance in our whole legal system and our constitution, I share the view of many other Conservative Members that there has to be a High Court to keep the Government in check by means of the judicial review process. An important aspect of the fulfilment of that function is that High Court judges decide such vital issues. If the Bill proceeds as it stands, however, matters could be decided by

“such other persons as may be agreed from time to time”.

Obviously, those other such persons will not be High Court judges, although they will be hugely eminent and experienced, and the agreement on who they are will be made between the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, or, as the case may be, the senior president of tribunals. I do not suggest for one moment that they will not be of the highest calibre, nor that they will lack the advice of experienced people. Maybe the Opposition are being purist. However, there is a  significant body of opinion in legal circles to the effect that the decisions should be made by High Court judges, that that is what the Bill should say expressly, and that the words that I have quoted should be removed. If they were, the Opposition would be far more content.

Only in rare circumstances will it be the case that such key judicial review applications do not go before a High Court judge—once or twice a year, maybe. Perhaps the Minister will tell us how often she expects that to happen. It might be only once every five years. However, those few cases could be of overwhelming importance, and in those circumstances we believe that it would always be appropriate for them to be heard by a High Court judge.

The Minister, and the Department for Constitutional Affairs, might well say that there are not enough High Court judges around and that there will at all times be insufficient such judges to take on the task. However, if there is such a shortage, and if there is an argument that more are needed, there is a vast pool of talent out there. We shall shortly be debating the widening of the pool for judicial appointments. If the DCA’s position is based on unavailability of High Court judges, my response is that there are easily enough people around with the serious talent and intellect to fill the spare places on the High Court bench.

If the Government are concerned about a lack of judges, they should make one or two additional appointments, which would immediately remove the administrative concern about such a lack. We could then put the Bill to Her Majesty in due course knowing that a very important part of our constitution had been preserved. The ability for such cases to be properly heard has been a part of our legal system for a very long time indeed. It provides the modus operandi whereby citizens of this country can actually challenge the Executive in cases that go to the root of our freedoms. I might be getting slightly carried away, and it might be that the matters that will come from tribunals on judicial review will not be anything like as weighty as I have suggested, but they could be. Given the types of issue that tribunals deal with day in, day out, it might well be that from time to time there will be appeals on judicial review that are pretty fundamental to the citizens of this country, our electors and our constituents. That is why we feel strongly that, at the very least, the Government should give a further explanation than the one that they gave in another place. We need to be satisfied that there is an overwhelming reason why the Bill cannot state that High Court judges will exclusively hear the applications.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

I added my name to the amendment because I share the strong views that are held about this matter. So far judicial review is carried out only by the High Court, but using the relatively newly developed opportunity in this country, people can use administrative law to challenge the Executive. Citizens have the opportunity to go to the independent judiciary to challenge the Executive. The Executive could be a Secretary of State, an agency, a Department or an official of the Government. That principle, certainly in the early days of the newly structured Tribunals Service, should be subject only to the judgment of someone who has the authority of a High Court judge. Clause 18(8) and its condition 4 give flexibility for other appointments.

Of course, people acting in the best interests of the system and the post holders, such as the Lord Chief Justice, the Lord President, the Lord Chief Justice of Northern Ireland and the senior president of the tribunals, will obviously consider such matters wisely. However, it should be not for them, but for us, to decide the matter. A lot of things in the Bill could be dealt with by secondary legislation or even rules of court or tribunals, not primary legislation.

However, what we are discussing should, first, be dealt with by legislation and, secondly, retain its present position. It is an innovation. It will give tribunals in the upper tier that we are creating the power to deal with judicial review applications. They are matters in which decisions are of major significance. They could go to the highest authorities in the land, so my request is for the Minister to reconsider the matter and accept that for the time being and for the first five or 10 years of the system, such a provision should be excluded. The best way in which to do that is to support the amendment. If later experience suggests that we can change things, we can return to the matter in the fullness of time. I would far rather that we struck out the provision now and kept the authority of the High Court for judicial review. I support the amendment.

Photo of Vera Baird Vera Baird Parliamentary Under-Secretary, Department for Constitutional Affairs

We do not agree. I agree with the hon. Member for North-West Norfolk that the current provisions will guarantee the highest calibre of judiciary in the upper tribunal to deal with judicial reviews. I also agree that there is a significant pool of talent able to be appointed, but this is not about personnel availability, but about flexibility.

The hon. Gentleman asked how many cases we expect to be dealt with. We expect there to be a mixture. The Lord Chief Justice will second some High Court judges to the upper tribunals. They will do some of the work, but many of the cases will be dealt with by the expert judges who are already in the upper tribunal. As my noble Friend Baroness Ashton explained in the other place, we regard a blanket requirement saying that a High Court judge is necessary for every judicial review in the upper tribunal as neither desirable nor necessary. The lengthy debate in the other place resulted in a clause that now encapsulates the principle that judicial review should be heard only by those judges who have the experience and expertise to do so. The clause would not do that by limiting the judges to those who are currently hearing judicial review in the courts.

I should emphasise that both the senior president and the Lord Chief Justice agreed that the amendments are workable and practical. I do not agree with the hon. Member for North Southwark and Bermondsey, who said that in this case the allocation of judges ought to be done by legislation; I think that it is better done internally, by the judiciary itself.

I would also point out to the hon. Member for North-West Norfolk that deputy High Court judges now hear judicial reviews. Sometimes they are circuit judges and sometimes they are QCs who are not judges at all, so we are not exactly striking out on a new line.

The hon. Member for North-West Norfolk has discerned a significant body of opinion in legal circles  that the ability to decide on judicial reviews ought to be confined to High Court judges. I should tell him that the Lord Chief Justice is not a member of that body of opinion. He states:

“Some cases in the Upper Tribunal will need High Court judges to hear them, and I intend to make such judges available to sit on those cases. However, it is imperative”

—imperative—

“that there is flexibility in relation to the circumstances where cases should be transferred to the Upper Tribunal, and flexibility as to who they will be heard by. That flexibility would be disturbed if the Bill was to include a provision limiting such cases to High Court judges, regardless of the relevant circumstances of the case. There are some persuasive examples of cases where judges of the Upper Tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases have, for example, been mentioned in the course of our discussions.”

Of course, we would expect special commissioners of income tax and social security—people who might hear judicial reviews in their own area of technical expertise—to be people of the highest imaginable calibre, as the hon. Member for North-West Norfolk said. However, flexibility is imperative, so I invite the hon. Gentleman to feel persuaded to withdraw his amendments because they are opposed by the Government.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 1:45 pm, 15th March 2007

The Minister quoted from the Lord Chief Justice and put an important point of view on the record. However, we should continue to discuss the matter because it is of fundamental importance. I am conscious of the fact that if we talk about it for too long in Committee, we might jeopardise our chances of returning to it on Report. I am grateful for the Minister’s response and the wise words contained in it, in which spirit I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 to 21 ordered to stand part of the Bill.