I beg to move amendment 43, in clause 2, page 3, line 19, at end insert—

“(1A) Notwithstanding subsection (1), subsections (2) and (3) shall not apply where the party refused permission (or leave) to appeal by the Upper Tribunal was the appellant before the First-tier Tribunal and—

(a) that party was without legal representation and the appeal before the First-tier Tribunal was not within legal aid scope;

(b) that party was not of full age or capacity;

(c) the appeal before the First-tier Tribunal was not an in-country appeal;

(d) the appeal before the First-tier Tribunal was subject to any accelerated procedure;

(e) the decision of the First-tier Tribunal was subject to any statutory restriction or direction concerning how that tribunal was to evaluate the credibility of the appellant or the evidence before it; or

(f) the application to the Upper Tribunal raises a point of law concerning the construction of any statutory provision for interpretation of an international agreement.”

This amendment is contingent on the interpretative provisions in Amendment 44. This amendment would provide a further list of exceptions to the ousting of the High Court’s jurisdiction that is proposed by Clause 2.

With this it will be convenient to discuss the following:

Amendment 42, in clause 2, page 3, leave out lines 34 to 37 and insert—

“(c) that decision or the decision against which the Upper Tribunal has refused permission (or leave) to appeal is vitiated by any—

(i) bad faith, or

(ii) fundamental breach of the principles of natural justice.”

This amendment would expand the current exception in Clause 2 to ensure it applies to any bad faith or fundamental breach of natural justice.

Amendment 44, in clause 2, page 4, line 8, at end insert—

“‘accelerated procedure’ means any procedure for which procedure rules permit or require that less time is provided than is the case for another party before the tribunal bringing an appeal under the same statutory right of appeal; and includes an accelerated detained appeal under section 106A(1) of the Nationality, Immigration and Asylum Act 2002; an appeal is ‘not an in-country appeal’ if the appellant is only permitted to bring or continue the appeal from outside the United Kingdom; a party is ‘not of full age or capacity’ if that party is—

(a) a child, or

(b) requires the assistance of a third party to understand the procedure or decision of, or issues before, the First-tier Tribunal and communicate effectively with that tribunal (whether or not that assistance is provided save to the extent to which the person requires an interpreter and one is provided) an appeal is ‘not within legal scope’ if representation before the First-tier Tribunal does not fall within civil legal services under section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

‘interpreter’ means a person whose sole function in proceedings before the tribunal is to translate between the English language and another language spoken by the appellant;

‘legally represented’ means having legal services as defined by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which services must be provided by a person who is not prohibited from providing them by any statute, court order or decision of any relevant professional standards body;

‘relevant professional standards body’ means a designated professional body as defined by section 86 of the Immigration and Asylum Act 1999 or such other body in England and Wales as may be designated by the Lord Chancellor, in Scotland as may be designated by the Scottish Ministers or in Northern Ireland as may be designated by the Department of Justice in Northern Ireland;

‘an international agreement’ includes the 1951 UN Convention relating to the Status of Refugees.”

This amendment is contingent on Amendment 43. This amendment would provide interpretative provisions for Amendment 43.

We are making splendid progress. I will again disappoint those who like cliff-hangers by saying right at the beginning what our attitude is towards clause 2. We find it concerning, both of itself and on its own merits. We believe that reversing decisions in Cart, and subjecting Cart judicial reviews to ouster, is wrong on its own merits. We also think, as the Government have perhaps unwisely said, that the clause may serve as a template for further or wider use of the ouster, possibly including in more controversial areas further on. We have an issue of practicality and an issue of principle, and are therefore very likely to vote against the clause.

This short group of amendments is an attempt to improve, ameliorate and mitigate clause 2. Frankly, we found it very difficult. There is very little to recommend in clause 2, unlike in clause 1, where we at least sought to find some imaginative ways of improving it. It is difficult; nevertheless, I will in a little while speak specifically to the amendments that we have tabled. However, I will start as I did with clause 1 by setting the background so that it is clear where we are coming from on the amendments and on the clause as a whole.

An ouster clause is a clause in legislation that seeks to oust the jurisdiction of the courts. The desired effect is that the subject matter of the ouster clause cannot be challenged in the courts. If given effect by the court, this would mean that the decision or action of an official in relation to that subject matter is final and cannot be challenged legally.

Rule of law objections to ouster clauses have often been made in Parliament. For example, in relation to the Justice and Security (Northern Ireland) Act 2007, the Constitution Committee of the House of Lords objected to an ouster clause, stating that

“the Rule of Law is diminished if an aggrieved citizen is barred from challenging an allegedly unlawful decision taken by a public authority.”

It is reasonable to say that ouster clauses are at odds with the rule of law. The orthodox view is therefore that courts will give effect to them only if the statutory language introducing them is absolutely clear. The courts have said:

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.”

In reality, courts are adept at reading even very clear words which purport to establish an ouster clause as not actually having the effect of creating an ouster clause.

The Tribunals, Courts and Enforcement Act 2007 contained an ouster clause relating to decisions of the upper tribunal. The upper tribunal deals with appeals from the administrative appeals chamber, the immigration and asylum chamber, the lands chamber and the tax and chancery chamber. In the case of Cart, the Court of Appeal stated that

“the supervisory jurisdiction of the High Court, well known to Parliament as one of the great historic artefacts of the common law, runs to statutory tribunals both in their old and in their new incarnation unless ousted by the plainest possible statutory language.”

There is no such language in the 2007 Act. The Supreme Court confirmed this approach. This has led to what are known as Cart judicial reviews, whereby a decision of the upper tribunal can be judicially reviewed.

There has been an on-going debate about how effective Cart judicial reviews are in catching errors of law made by the upper tribunal. The Independent Review of Administrative Law panel found that there were errors of law in only 0.22% of cases. The Public Law Project has questioned the empirical evidence for that and suggested that Cart judicial reviews are much more effective, with an actual figure between 2.3% and 9.2%. It is difficult to know what the true figure is, but it is conceded that the 0.22% figure is a significant underestimate. I will say more about this later. However, I felt that that there was a degree of consensus around some of the evidence we heard on Tuesday that the figure was certainly about 3%, and possibly around 5%. I will come on to what I think the significance of figures of that kind may be.

Whether it is 0.2%, 3% or 5%, we are still talking about a figure at least 10 times lower than the average success for other types of judicial review, which is 40% or 50%. Surely that is a significant point to consider?

I thank the hon. Gentleman for his point. We did hear a number of different figures. I am now stretching my memory to recall exactly who said what. Was it Professor Feldman who said 30% to 50%, and Dr Morgan who posited 5%? I cannot quite remember. However, yes, there are different success rates for different types of judicial review. The point is that, even if the figure is small, Cart judicial reviews are important—I will come on to that more fully. However, if it is 5%, that is not a negligible figure. One in 20 is still a lot of cases. I am going to give some case examples to show the type of case that we are dealing with here. Perhaps the hon. Gentleman will be persuaded that there are sufficient by way of number and variety or that the compelling facts of the cases are such that he would want to retain Cart reviews. We will see.

The Government said they would introduce legislation to reverse the law on Cart judicial reviews. They said that they would seek to widen ouster clauses to other areas, although accepting that they would be rare. They also said they would legislate for modifying quashing orders so that they could be suspended or have limited effect. The proposals announced by the Government appear to be more radical than those envisaged by the independent panel—I think that is true.

The Lord Chancellor recently suggested that there may be more reforms to come on judicial review. His view was that judicial review meant that public money was being squandered, as courts are overturning Government decisions. However, as the commentator Joshua Rozenberg recently put it, commenting on a decision of the Transport Secretary on the Stonehenge case, which I have already referred to today, if the Transport Secretary

“had got it right the first time, taxpayers’ money would not have been squandered.”

Rather than a Minister complaining about a court rectifying unlawful decisions, it would be better to make lawful decisions in the first place.

The clause would take away proper, full judicial oversight in a specific area of public decision making, leaving vulnerable individuals affected by decisions more at risk of injustice. It does so in a way that the Government explicitly state is a test run for other ouster clauses—trying to get rid of judicial oversight in other policy areas. We have been left with a Bill that is bad for claimants bringing cases, disincentivises others who have been wronged bringing their own, fetters discretion while dragging courts into matters of policy, and jettisons a vital safeguard for very little gain. There is nothing in this part of the Bill to help improve the quality of decision making. It simply risks making it worse. The judicial review aspects make up only a small amount of the Bill, but there is very little that we think can be salvaged.

Clause 2 introduces the ouster in respect of decisions of the upper tribunal. That means that some decisions will now be final and cannot be appealed to another court, because the clause would abolish the Cart judicial review. The upper tribunal deals with a host of appeals from various tribunals. The context is the importance of scrutiny and accountability mechanisms to hold public authorities to account.

Cart judicial review is used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights.

The hon. Member is making some interesting points about why we need to keep the system as it is, which allows for three bites of the cherry. Will he set out whether he thinks that process should extend to lots of other areas, and has he considered how much that would cost and how much judicial time would be taken up?

I am not sure I have bought into that. I know it has become a mantra in the Bill, but I am not sure I have bought into the cherry analogy. I would rather say it is horses for courses.

Back to the Cart. [Laughter.]

Bolting the stable door—whatever. If the hon. Member for Burnley gives me a few more moments, he will see that my argument is that the way the Supreme Court has configured this is sensible, because it works. There is a problem with Cart and Cart cases. Far from being otiose or an extravagance, the ability to review these cases is very necessary.

I do not think anyone is saying that it does not work. What we are saying is that it is a different process, and we are talking about whether it is efficient and fair for this one cohort of cases to be treated in a very different way. It is not about whether it works or does not work; it is about whether it is the right process and whether we should operate on a consistent basis.

I have said, and I am coming back to the issue, that it is right and just to maintain Cart judicial reviews, but I will come on to the issue of cost shortly and whether that is appropriate. I hope that will answer the hon. Gentleman’s question.

I am glad my hon. Friend is going to get on to costs. In the evidence session earlier this week, the Minister spoke about having the privilege of attending the Lord Chancellor’s swearing in. He said:

“One of the things he swears is that he will ensure that resources are provided to the judiciary. This is not just about public money per se; it is about time”.––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 30, Q32.]

Should cash get in the way of justice, as it is here?

Everything has a cost—it is a question of whether it is a reasonable cost. Unfortunately, we have seen the justice system of this country and every aspect of the budget of the Ministry of Justice cut more than any other Department in the last few years. Even the much heralded uplifts over the next few years will take us not much further than restoring half of the money that has been cut. I think it sits rather ill in the Government’s mouth to start talking about money, having done so much damage.

There is not an infinite amount of money, although the Government seem to discover various money trees around the place, and it is a legitimate factor to consider. What I am going on to look at is whether, in the case of Cart, the cost is a justifiable cost, either because of the remedy it provides or per se.

As I have said, Cart judicial reviews are used in cases where no other right to appeal exists. This type of judicial review is a crucial safeguard against errors in the tribunal system in decisions of significant importance for the people concerned, which often involve the most fundamental rights. It is usually used in asylum and human rights cases, in which the stakes are extremely high. In many cases, these are life-or-death decisions. It is unacceptable to insulate such decisions from judicial scrutiny.

In most cases, it is true that these are asylum and human rights cases, but not all of them are. One of our witnesses—Dr Morgan, perhaps—mentioned that Cart itself was not an asylum and immigration case. It would be wrong to categorise Cart judicial reviews as being for asylum and human rights cases. There are others as well.

Clause 2 would severely restrict Cart judicial review. The Government have not made the case for removing this vital safeguard against serious errors in the tribunal system in cases of the utmost importance. With this clause, the Bill would set a precedent for removing certain cases or areas from the scope of judicial review.

The desire to get rid of judicial oversight in any area should be of the utmost concern to those who care about the rule of law and the separation of powers. There is simply no evidence that judicial review is currently so prejudicial to good administration that it needs to be significantly restricted, and there was no conclusion to that effect in the Government-sponsored independent review. That is wholly unsurprising. That Governments find judicial review at times to be inconvenient is no justification for attempting to avoid judicial scrutiny, in this or other areas. It is particularly concerning in this specific instance.

The Bill will largely extinguish the power of the High Court to oversee decisions of the upper tribunal relating to permission to appeal first-tier tribunal decisions. This will affect all four chambers of the upper tribunal, and individuals will no longer be able to apply to the High Court. The removal of this safeguard is likely to impact some of the most vulnerable people in the system, taking away their protection from errors made by public authorities. These include refusals of asylum and, where human rights are engaged, decisions to deport someone, including where that person may have lived in this country for much, most or even all of their life.

It is important to understand that removing the normal supervision of the High Court in this area is particularly problematic given the existing constraints in the asylum and immigration system for the tribunal, and in the context of the Nationality and Borders Bill, which threatens to exacerbate those constraints. The danger is that those passing through this system will be at heightened risk of failing to receive a fair and full hearing of any appeal whatsoever. If so, the administrative decision to refuse asylum to, or deport, a person will go without any effective or independent oversight. That will be exponentially harmful, because it will tend to insulate the original administrative decision making from the degree of scrutiny that is necessary to have any prospect of improving and maintaining its quality.

The purpose of judicial review is to ensure that public bodies make lawful decisions. The provisions in this Bill would do nothing to improve that, such as by ensuring access to high-quality legal representation from an early stage in proceedings, or by improving guidance. Instead of reducing need, the Bill simply removes access to Cart judicial review, which allows individuals to challenge decisions to refuse them a right of appeal where those decisions are made unlawfully. Doing so narrows access to justice and means that people who are subject to unlawful decisions have less opportunity for redress. Cart judicial review is a vital remedy of last resort for people subject to unlawful decision making, and should be defended.

Turning to the statistics and costings, unlike prospective-only remedies or a presumption in favour of suspended quashing orders, it is right to say that reversing Cart was a recommendation of the independent review of administrative law. The counter-argument in favour of clause 2 is primarily said to be the cost of Cart cases and the use of valuable judicial resources. The costs of Cart JRs are described as a “disproportionate and unjustified burden” on the system. The Bill’s impact assessment estimates that between 173 and 180 High Court and upper tribunal sitting days will be freed up each year through clause 2, representing savings of between £364,000 and £402,000 a year. That figure is not high—it is less than some Members can pick up in their alternative jobs over a period of a few years—especially when considering the important role of Cart JRs in preventing serious injustice and ensuring that key decisions of the upper tribunal are not insulated from challenge.

A High Court judge can consider at least five applications for Cart judicial review in a single sitting day, an assumption that may be overstating the time taken to consider a single case. That figure of £364,000 to £402,000 is also inflated, because it considers the costs of the upper tribunal rehearing the case. That will occur because an unlawful upper tribunal permission decision has been identified by the High Court, so including those costs in the impact assessment is to include savings that result from allowing unlawful decisions to stand. That position cannot be acceptable.

Further, the average number of hours per Cart judicial review in the High Court that the impact assessment provides is 1.3 hours—again, that means up to five Cart JRs per day, which could easily be overestimating the time it takes a High Court judge to consider a single Cart judicial review case. That is especially true because there is a specific streamlined procedure for Cart JRs, which includes that if permission for the Cart JR is granted, unless a substantive hearing on that judicial review is requested, the court will automatically quash the upper tribunal’s refusal of permission. Moreover, that figure is inflated because it includes the cost of the upper tribunal rehearing the appeal in a successful case. That would constitute a cost saving resulting from allowing unlawful decisions to stand: those costs would only be saved because the upper tribunal’s unlawful refusal of permission to appeal was immunised from challenge.

There is already a high threshold for the use of Cart judicial reviews. In order for permission to be granted, the case must be shown to be arguable with a reasonable prospect of success. Lawyers must also show that there is an important point of principle under consideration, or another compelling reason for the appeal to be heard. Applications for Cart judicial review of a decision must be submitted within 16 days of the initial decision having been sent, instead of the usual three months available in other types of judicial review. Unlike other judicial reviews, there is no right to an oral hearing: Cart judicial reviews are dealt with by paper application only, thus requiring minimal judicial resources.

As we have already touched on, IRAL’s recommendation to reverse Cart judicial review was based on the 0.22% figure, but I think it is now generally accepted that that figure was seriously flawed. The criticism of that figure attracted the support of the Office for Statistics Regulation, and the Government have now accepted it: their own analysis suggests that at least 3.4% of cases are successful, a figure 15 times higher than IRAL originally estimated. However, that figure is also not universally accepted, with the Public Law Project estimating that success rates for Cart JR are considerably higher. I know that there are a number of figures flying around, but I think quite a persuasive case was made for the figure of around 5%. I think the variation stems from IRAL’s misunderstanding of how to calculate success in Cart JRs, as well as procedural complexities that mean that they are rarely accurately reported.

Further, the Government’s definition of success does not reflect the purpose of Cart JRs and is unduly narrow. The analysis in the consultation response and impact assessment adopts an unduly narrow definition of success, which artificially deflates the success rate and artificially increases the projected cost savings. The Government define success as not only success in a judicial review, but also a finding in favour of the claimant at a subsequent substantive appeal in the upper tribunal. That is because the Ministry of Justice assumes that a Cart JR is successful if not only the upper tribunal’s refusal of permission to appeal is overturned, but permission to appeal is granted and the appeal against the first-tier tribunal’s decision is allowed.

That excludes all the cases in which Cart judicial review played a vital role in correcting an error of law in the upper tribunal’s refusal of permission to appeal, but the subsequent appeal was dismissed. That is not the normal approach to defining success in judicial review. It ignores the benefit that flows from a case that meets the Cart criteria being heard in the upper tribunal, allowing that more senior tribunal to consider important points of principle or practice and opening up the possibility of appeal to the Court of Appeal, thus preventing the upper tribunal from being insulated from the general courts system.

A Cart judicial review should be regarded as successful if it results in the refusal of permission to appeal being overturned. If we adopt that definition, the success rate is more like 5.5% or 6%, which is some 25 times higher than the IRAL panel thought and means that more than one in 20 cases are successful. That might be regarded as a reasonable and appropriate success rate for challenges to decisions by a senior tribunal, but that view is surely fortified by the nature of the issues at stake.

In any full assessment of the proportionate use of judicial resource, account needs to be taken of the weight of the interests. In the administrative appeals chamber, many appeals concern access to benefits that are designed to prevent destitution and homelessness, or to meet the additional living costs of disabled people. In the immigration and asylum chamber, almost all cases involve asylum and human rights appeals. The potential injustices at stake concern the most fundamental rights and may literally be a matter of life and death. The cases that succeed in a Cart judicial review will also, by definition, involve important points of law or practice, which would otherwise not be considered, or compelling reasons such as the complete breakdown of fair procedure.

Cart JRs have several purposes, including the identification of errors of law in upper tribunal permission decisions where important issues of principle or practice are raised. That will be achieved if the upper tribunal’s refusal of permission to appeal is quashed. The impact assessment states that of a total of 92 cases, out of 1,249 applications, 48 were remitted to the upper tribunal for permission to appeal decisions. That is in the context of immigration Cart JRs for 2018-19, minus cases pending an appeal decision in the upper tribunal. Therefore, based on those figures and a more accurate definition of success, which still does not account for settlement, the success rate is 7.37%—more than double the 3.4% that the Government now rely on, and more than 30 times the original figure cited by IRAL. In addition, there is required to be an arguable case that has a reasonable prospect of success.

In short, the streamlined procedure for Cart judicial reviews, together with the high test for permission in Cart cases, provides a proportionate means of achieving the aim, which the Government commend, of ensuring some overall judicial supervision of the decisions of the upper tribunal in order to guard against the risk that errors of law of real significance slip through the system. An entirely appropriate and proportionate amount of judicial resource is used in identifying and correcting errors of law that would have potentially catastrophic consequences for the individuals concerned.

As I have said, it is not just the number of cases but their nature that is concerning. Many relate to immigration and asylum. Many of the remainder concern access to benefits for the disabled and others facing destitution. The result of these appeals may decide whether someone has the means to live and to be housed, or whether they may be deported, separated from their family and face potential mistreatment, and the Government are not unaware of that.

The Bill’s impact assessment states that the majority of Cart cases relate to immigration and asylum, and therefore

“those who lose out are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.”

That is seen as acceptable, as it will

“will reduce the number of High Court Judge and Upper Tribunal Judge sitting days required, so saving judicial time and allowing Judges to focus on other matters.”

I just do not follow the logic of that. How, on the one hand, can they can say that, effectively, this will prejudice groups with protected characteristics and affect people in extremis, but, on the other, go on in the next, non-sequitur, paragraph and say, “Nevertheless, we believe…”. Given the amount of money involved, which is not a huge amount of money, and given the success rate, I think that that is a rather glib response from the Government in that document.

In its response to the Government consultation, the Immigration Law Practitioners Association provided an illustration of what the Government intend to jettison to free up time for “other matters”. It listed 57 case studies of successful Cart JRs omitted from IRAL’s report, including that of a Ugandan lesbian whose initial appeal had been sabotaged by a false letter to the court from a homophobic acquaintance, and a victim of trafficking who had originally been deemed to have voluntarily come to work despite having been trafficked into the country as a child. The cases, ILPA wrote, demonstrate how removing Cart would have

“extremely serious consequences for the people affected”.

It went on to say:

“These are all cases where a person’s fundamental rights were engaged, many of them asylum claims, and where the Upper Tribunal made the wrong decision in refusing to grant permission to appeal. These examples demonstrate a significant risk if changes are made to Cart JRs which mean that challenges to unlawful decisions are not permitted to proceed beyond Upper Tribunal stage.”

The experience of the Joint Council for the Welfare of Immigrants shows that

“the availability of Judicial Review in and of itself helps to ensure effective decision making. Knowing that decisions are subject to independent judicial scrutiny is integral to ensuring good quality decision-making.”

Anyone allowing any actor free rein to exercise a power without the possibility of scrutiny is alien to the democratic principles under which we are governed. More important than the precise success rates of Cart JRs are the nature of those successful cases. As mentioned above, cases in which a wrongful decision by the upper tribunal is overturned by way of Cart JRs are ones with grave consequences.

As we are looking at this whole issue of scrutiny, which is so important, I cannot quite understand why the Government or anybody else would not want greater scrutiny of what they do on a day-to-day basis. Does my hon. Friend understand my feelings on that?

I do understand, and I think that quite a lot of our witnesses understood that as well and could balance the relatively small numbers and the particular provision for Cart, which the Supreme Court upheld, against the very serious nature of these cases. I will go on to outline some cases. I will not do all 57, but I will give a handful of cases that will perhaps indicate the variety and the seriousness of the cases that we are dealing with here. It is very easy to deal with the law in the abstract, but we need to look at the type of individual who is affected and at the profound effect that it has on their life.

In addition to the equality implications, the fact that Cart JRs primarily relate to immigration and asylum decisions means that the human rights consequences may be particularly severe, impacting the right to life and the absolute right to freedom from torture, inhuman and degrading treatment, which are protected by articles 2 and 3 of the European convention on human rights, as well as the right against return to persecution, which is protected by the refugee convention. An unchallenged, erroneous tribunal decision could also lead to long-term family separation, engaging article 8 of the ECHR, on the right to respect for a private and family life. Cart JRs prevent serious injustices. The Government recognised in the consultation that the removal of Cart JRs “may cause some injustice”. Almost all the cases in the immigration and asylum chamber of the first-tier tribunal relate to asylum and human rights appeals, which engage the most fundamental rights, including, in some cases, the difference between life and death.

I mentioned the 57 cases that were cited by ILPA, and there were also 10 cases identified by IRAL. Each involved a person’s fundamental rights and the upper tribunal incorrectly applying the law. Those examples included: parents’ applications for their child to be reunited with them; a child’s application to remain in the UK to receive life-saving treatment; the asylum claim of a victim of human trafficking and female genital mutilation; and many other deportation and asylum decisions where, if deported, the individuals faced persecution, their lives were at risk and/or they would be separated from their families. So let me briefly go through a handful of the cases that were cited.

In one case, the right to a Cart appeal saved a humanist asylum seeker who would have been wrongfully deported to Egypt to face state-sponsored persecution and vigilante violence. He relied on Cart to demonstrate that the tribunal judge erred in his case. It is also worth noting that the Home Office conceded his claim before it went to a full hearing at the Court of Appeal, which meant that his case will not show up on official statistics regarding Cart. Then we have the case of Nadeem, a young Afghan man who came to the UK as an unaccompanied minor and was in the care of social services. He was tortured by the Taliban as a child. His case was dismissed because, even though it was accepted that he was at risk in his home area, no medical evidence had been obtained to show that he was traumatised as a result of that torture. The trauma he had experienced and its impact on him made it unreasonable for him to relocate to Kabul. His brother, who had come here in the same circumstances, had that medical report, and his appeal was allowed. The day after Nadeem’s appeal decision was sent out, the country guidance showing that it was possible to safely relocate to Kabul was ruled unlawful by the Court of Appeal. Nadeem was urgently referred to the Joint Council for the Welfare of Immigrants, which used Cart JR to enable him to bring his appeal. This appeal was subsequently allowed on the basis that the original decision was irrational. He was then recognised as a refugee and is starting to build his life in the UK with his brother, safe from the Taliban.

Then we have the case of Tania, who was a child victim of trafficking. Her asylum appeal was dismissed by the first-tier tribunal, which found that she was not trafficked and would not be at risk on return. She was 15 years old when she was transported to the United Kingdom to work with the family in question. Permission to appeal to the upper tribunal was sought, because, as a question of law, she could not “voluntarily” undertake such work as a minor. As a victim of trafficking, and given her profile, the objective evidence demonstrated that she would be at risk of persecution on return. Permission to appeal was refused by both the first-tier tribunal and the upper tribunal, but a Cart JR of this decision was successful, with the judge finding that the tribunals had failed to address the fact that Tania was a child victim of trafficking in their reasoning. The decision of the upper tribunal to refuse permission to appeal was quashed and permission to appeal to the upper tribunal was granted. Tania was subsequently recognised as a refugee and is no longer at risk of trafficking and forced labour, thanks to the successful intervention by way of Cart JR.

The hon. Gentleman must know that only about 3% of these kinds of judicial review succeed, and that the huge number of them, 750 or so a year, are taking up enormous amounts of time. It would be good to have a debate in the House, perhaps even urgently, on the backlog of court cases, as then we can hear him say that he supports our attempt to clear that backlog. Why not have a debate about it on Monday? We can talk about why the Bill is so helpful in dealing with that problem.

I am going to disappoint the right hon. Gentleman by not taking responsibility for this Government’s court backlog, which is continuing, in the Crown court at least, to grow and to which we have precious little solution at the moment. Nor am I going to put the burden of that on to this type of case. The reason why I am going through a few of these case summaries is to show, on their facts, that these are compelling cases.

The right hon. Gentleman could possibly have said 0.22%, which was the figure that the Government sought to rely on. That was a very low figure. I think he said 3.4%, but I think it is higher than that. I think this is a significant number of cases. I also think they are very compelling cases. He may not want to hear the facts of these cases, but to rebut that with the current Crown court backlog—I will put it politely, I think there is an element of non sequitur there. I do not want to get into a big debate about the MOJ’s finances, but I did mention that any extra money that has been put into the MOJ, or will be over the next three years, is a recognition of the ridiculous levels of cuts that have been made since 2010 and does not begin to address them

But by definition, given the success rate, these changes will take out considerably more than 700 cases. That may create room for others, I do not deny that, but it is pretty hard for someone to argue that they want to free up more resources for the courts and then to argue against provisions that do just that.

With respect, it is not. We are talking about a sum of between £300,000 and £400,000. I do not think that will make a material difference to the Crown court backlog. That is partly—mainly—a result of underfunding, but also of mismanagement by this and previous Governments since 2010. Those listening to the debate can make up their own mind about whether that was a sensible rebuttal of the type of cases that, as a result of getting rid of Cart judicial review, will no longer have a remedy—will no longer be able to come before the courts. It is not unique; it does happen and it can be justified, but it is a very serious step to engage an ouster clause. It is for the Government to make that case, and I am sure that, when I finish today, or when we resume next Tuesday, the Minister will try to make the case. To put the onus on the Opposition is, shall we say, chutzpah.

Let me, in the time I have left, go through perhaps just half a dozen cases. I do not want to take up Members’ time, but I do want to put these cases on the record, because I think that this type of case is exactly what we are dealing with and when one hears about the victims and the potential litigants in Cart reviews, that makes a difference to how we regard them.

Jared is a Tamil who had supported the Liberation Tigers of Tamil Eelam as a teenager and was tortured by the Sri Lankan state as a result. His body was covered in more than 100 scars typical of torture methods used by the regime. Despite that, and a country expert report, his appeal was dismissed. Despite his trauma and the risk that he faced on return, he was detained pending removal. He lodged a Cart judicial review challenging how the tribunal had treated the expert evidence supplied in his case. The case was successful before the Court of Appeal, and he was then recognised as a refugee. It was accepted by the Court that he would have been at real risk of further torture and persecution if returned.

SR, a Sri Lankan national, feared persecution, in part because of his involvement in diaspora activities in the UK. His appeal was dismissed by the first-tier tribunal, and he was refused permission to appeal. Following his application for a Cart judicial review, the refusal of permission to appeal was quashed on the grounds that the first-tier tribunal had failed to consider the evidence of the applicant’s diaspora activities in the UK and whether, in light of the evidence and the arguable change in conditions in Sri Lanka since 2013 when the upper tribunal had given country guidance, he would be at risk on return. The upper tribunal found that the first-tier tribunal had made an error of law and decided to hear the case to give new guidance on risk on return for those involved in diaspora activities. Before the hearing in the upper tribunal, the Home Office conceded the appeal, accepting that SR was a refugee. Without the possibility of a Cart judicial review, SR could have been sent to Sri Lanka, where he had a well-founded fear of persecution.

Michael had a serious and enduring mental health condition. He had been sectioned several times under the Mental Health Act 1983 and diagnosed with bipolar affective disorder. The first-tier tribunal rejected his appeal against a decision to return him to Nigeria, despite finding that Michael is vulnerable, requires ongoing support and would be at significant risk of relapse if returned. He would not be able to fund healthcare on return to Nigeria, and even if he could, would not be able to access it. He did not have any material support in Nigeria. Nevertheless, it was found that there were no very significant obstacles to his reintegration on return. Permission to apply for judicial review was subsequently granted on the basis that the first-tier tribunal failed to take into account Michael’s mental illness. The refusal was quashed, and Michael was granted permission to appeal to the upper tribunal, which found that the first- tier tribunal judge had made a material error of law.

A claimant was in a relationship with a British citizen and had two children by them, who were also British citizens. The claimant’s partner suffered from serious health conditions. The claimant’s argument that removal would breach their right to respect for their family life was dismissed by the first-tier tribunal and permission to appeal was refused. Following a Cart judicial review, the decision of the first-tier tribunal was overturned. The upper tribunal allowed the appeal under article 8. Without a Cart judicial review, the family would have been separated.

CL had been trafficked for the purposes of domestic servitude in a diplomatic household. Her appeal was dismissed by the first-tier tribunal and she was refused permission to appeal. CL brought a Cart judicial review in which she argued that her case raised not only compelling reasons of risk on return but important points of legal principle and practice. After permission was granted for a Cart judicial review, the refusal of permission was quashed and the case eventually remitted to the first-tier tribunal. The Home Office conceded the appeal and granted CL refugee status before the rehearing in the first-tier tribunal.

Lord Dyson explained in the case of Cart:

“The High Court’s supervisory jurisdiction to correct any error of law in unappealable decisions of the predecessors of the UT has been beneficial for the rule of law. There is a real risk that the exclusion of judicial review will lead to the fossilisation of bad law...There are also risks in restricting the judicial review jurisdiction in relation to errors of law in unappealable decisions of tribunals in cases involving fundamental rights and EU law. In such cases, if the UT makes an error of law in refusing permission to appeal, the consequences for the individual concerned may be extremely grave…In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”

I will refer to two more cases. One is the case of a trafficking victim who was trafficked to the UK from her home country of Nigeria. Traffickers in both countries had brutally mistreated her and subjected her to serious physical and sexual abuse. While in the UK she gave birth to a child, who she looked after alone. There was no question that she was a genuine trafficking victim. The Government did not dispute this. A tribunal was convened to decide what support and protection she ought to receive; but when it came to the hearing, the tribunal went beyond the statements of the parties and decided that she was not, in fact, a victim of any trafficking or exploitation. As such, she did not attract protection and could be removed from the UK. This would have resulted in her falling back into her trafficker’s hands and undoubtedly led to her being seriously mistreated and perhaps killed. The fate that would have befallen her child is difficult to even contemplate.

The Cart procedure was used to re-evaluate this decision before the High Court. The Court found that the tribunal had made a litany of errors leading to

“elementary and serious breaches of the principles of procedural fairness” and, as such, its decision could not stand. The errors included going beyond the Government’s case and making unsupported findings against her without giving her a chance to defence herself, and departing from country guidance without good reason. On the evidence, she was clearly a victim of trafficking, and the High Court ruled that she should be treated as such. In fact, it ruled not only that the case was arguable and should have proceeded, but that it was bound to succeed, based on the strength of her claim. Without the oversight of the High Court, the tribunal’s original, fundamentally flawed ruling would not only have established a position that was wrong in law, but seriously risked putting the person in question in grave danger. The Cart jurisdiction was vital for correcting the error.

Finally, there is the case of a claimant who had suffered a tragic life in his home country. He is 12 years old and his family was tracked down, shot and killed in front of him. He drifted between states before moving to the UK. After some time, the UK sought to remove him to Palestine. This would not only have put him in great danger of being targeted and killed; medical experts confirmed that he was suffering from a serious mental health problem and that removal would likely cause serious harm to him or others. Although the tribunal dismissed the claim, the High Court was able to intervene. The High Court, and then the Court of Appeal, assessed his Cart application and found that the tribunal had been applying an outdated understanding of the law. Thanks to Cart, the senior courts were able to ensure that the correct law was applied. The relevant evidence was considered properly, and the serious medical concerns about physical and mental health were taken seriously. Were it not for the Cart jurisdiction, a seriously vulnerable man may have been sent to a country where he faced a significant risk of being killed and may have posed a serious risk to himself and others.

As those case studies and numerous others illustrate, people who benefit from the last-resort safety net of Cart judicial review are some of the most vulnerable in our society: children, survivors of torture and trafficking, and mentally unwell and traumatised people who have been subject to irrational and poorly reasoned decision making. Cart judicial reviews are used because no other legal remedy is available. As well as the risks posed to those bringing immigration cases for review, users of the tribunal service bringing cases on grounds of mental health, social security or special educational needs may also be affected by provisions that remove access to Cart judicial reviews. Cart JR cases that succeed involve either an important point of principle or practice that would not otherwise be considered, or some other compelling reason. Some 5,870 judicial review applications since 2012 are labelled “Cart immigration” in the Ministry of Justice data on civil justice and judicial review for 2020, and 423 judicial review applications are labelled “Cart other”. The Government accept that there may be a disproportionate impact on those sharing certain protected characteristics, such as disability, but they have not collected the data necessary to analyse these equality impacts.

The need for judicial review could be reduced by introducing measures that would increase the quality of decision making by public bodies through better resourcing of the courts and legal aid sector. The clause represents a misdirected attack on access to justice, instead of taking steps to improve outcomes before they reach the point of needing to rely on judicial review. It will not solve any of the problems in our justice system and may instead deny vulnerable members of our society the legal protection that they need. There is also a wider point about public interest at stake, because judicial reviews prevent the upper tribunal from becoming insulated from review by ensuring that there is a means by which errors of law, which could have significant and ongoing impacts across the tribunal system, can be identified and corrected. As Lord Phillips said, Cart judicial reviews

“guard against the risk that errors of law of real significance slip through the system.”

Upper tribunal judges will be specialists in their field. As Lady Hale recognised, however, “no one is infallible.” Cart judicial reviews mitigate the risk of erroneous or outmoded constructions being perpetuated within the tribunal system, with the upper tribunal continuing to follow an erroneous precedent that it or a higher court has set. As Lord Dyson said:

“In asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture.”

Clause 2 intends to remove a vital safeguard against life-altering decisions being forced on people due to mistakes based on faulty statistical reasoning. The reversal of Cart will lead to people who would otherwise have won their cases being deported or made homeless, entirely because of the Bill.

Will the hon. Gentleman give way?

I will in a moment. Under clause 2, that crucial and focused review will be lost, and with it the potential for fundamental injustices to be prevented. I am coming on to talk briefly about amendments 43, 42 and 44, but I will give way.

The hon. Gentleman used the phrase “faulty statistical reasoning”. In 2004, when the current shadow Justice Secretary, Mr Lammy, was a Minister, he tried to bring forward a similar measure. Can the hon. Member for Hammersmith remind us of the percentage reasoning used to justify that measure at the time?

Along with “bites of the cherry”, I cannot comment on the shadow Justice Secretary’s activities before I was elected to the House. It might be approaching lèse-majesté for me to intrude on that, particularly given that he dealt with it effectively on Second Reading.

I am happy to help the hon. Gentleman.

I would never refuse an intervention.

In a Bill Committee, the statistic that the right hon. Member for Tottenham, as Constitutional Affairs Minister, used to justify getting rid of Cart JR was 3.6%—an incredibly similar statistic, which suggests that there is some merit in that figure.

We have heard every figure from 0.22% up to 9.6%, and some of the experts made the case for it being substantially above 3%. I am making a separate case, however, which is why I wanted to read into the record some of those case summaries of complex cases. They indicate: first, that they are compelling cases; secondly, that there are a significant number, even if they are a minority; and thirdly, that the figures that we are talking about—I wish we could get more accurate figures; perhaps the Minister could go away and help us with that—are likely to be substantially above 3.6%. I know that the Government have moved only that far at the moment, but perhaps they can be persuaded to move a little further.

I fear that I will not finish today, but hon. Members will be pleased to hear that I am near finishing. I will say a few words on what are essentially probing amendments 43, 42 and 44. As I said at the beginning, they are our way of making the best fist of improving clause 2—they are not our finest hour.

We would like to understand why it is proposed to exclude the supervisory jurisdiction of the High Court to consider upper tribunal decisions to refuse permission to appeal, where it is arguable that the statutory appellate process is tainted by bad faith or fundamental breach of natural justice, unless that question is one of bad faith or breach of natural justice by an act of the upper tribunal itself. Clause 2 permits very limited exceptions to the ouster of the High Court’s supervisory jurisdiction over the statutory tribunal appeals system.

Proposed new section 11A(4) of the Tribunals, Courts and Enforcement Act 2007 sets out the limited exceptions. Proposed new section 11A(4)(c) provides for an exception where a question arises as to whether

“the Upper Tribunal is acting or has acted…in bad faith, or…in fundamental breach of the principles of natural justice.”

That restricts the jurisdiction of the High Court when the bad faith or a breach of natural justice is on the part of the upper tribunal in refusing permission to appeal. If, however, the statutory tribunal appellate process has been otherwise tainted by bad faith or a fundamental breach of natural justice, whether before the upper tribunal or in the first-tier tribunal, the High Court’s jurisdiction would continue to be excluded. That might, for example, be on the part of the tribunal below or on the part of a party to the appeal.

Any appeal that is tainted by bad faith or a fundamental breach of natural justice would therefore not fulfil Parliament’s purpose in establishing a statutory appellate tribunal. Therefore, in the interests of both justice and parliamentary sovereignty, any appeal tainted by either of those factors should not be excluded from the supervisory jurisdiction of the High Court. The amendment could expand the current exception in clause 2 to ensure that it applies to any bad faith or fundamental breach of natural justice.

I pause to catch my breath before I go on to amendments 43 and 44, just in case the Chair was about to interrupt me. If not, I will begin. It is unclear what is proposed by clause 2 having regard to the existing and pending limitations of the tribunal system in securing access to justice for appellants before it, particularly in relation to the function of that system as guarantor of the safety and fairness of administrative decisions. The Bill could be amended to provide a further list of exceptions to the ousting of the High Court’s jurisdiction proposed by clause 2. I propose an amendment that gives examples of circumstances in which there must be special concern about the capacity of the first-tier tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal.

Several of the circumstances listed in the amendment, which proposes new paragraph (1A), place a specific constraint on that tribunal to reduce its capacity to deliver justice. Some go directly to the tribunal’s independence, while others go to the safety of the process imposed on the tribunal for the performance of its function. There are two fundamental aspects to concern relating to clause 2, both of which need full consideration. The first relates to the constitutional role of the High Court in guaranteeing justice by a tribunal system. This arises directly from the clause, since the purpose is to oust the jurisdiction of the High Court to perform such a role. The second relates to the constitutional role of the High Court as the guarantor of the lawfulness of acts by public bodies. That is because the tribunal system has been introduced by Parliament to increase access to justice and relieve the High Court of the weight of this role by providing an alternative and more accessible remedy to judicial review in relation to a range of administrative decisions.

Such decisions concern specified matters, including entitlement to social welfare support, taxation, entitlement to asylum, and deprivation of British citizenship. Those are matters of huge importance to the individuals concerned. They are also matters whereby error and unfairness could have devastating consequences both for the individual and for wider public confidence in justice and Government.

The dangers of clause 2 are emphasised by what has happened and what is intended to happen to the immigration and asylum chamber of the tribunal system since the Supreme Court’s Cart decision in 2011. For example, following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legal aid is no longer generally available for non-asylum appeals, or for the few non-asylum immigration applications in which an appeal remains. Where legal aid is available, as it is for asylum claims and appeals, the rates at which it is paid have remained unchanged for years, stretching back even before the Cart decision. The impact is that appellants in complex non-asylum claims and appeals may be without any legal assistance, and the quality of any assistance provided to those claimants and appellants who remain legally assisted is at significantly greater risk due to increased pressures of time and cost arising in what is left of the legal aid scheme.

Since the Cart decision, the Immigration Acts 2014 and 2016 introduced powers to prevent such appeals—those that could still be brought after those Acts—from being pursued while the appellant remained in the UK. That means that some appellants are unable to appear in person for their appeals or to instruct legal representatives, which significantly reduces their capacity to participate effectively in the appeal.

The Nationality and Borders Bill currently before Parliament includes provisions to direct or require judges of the tribunal system as to the findings that they may or may not make on the evidence presented to them. That Bill also seeks to constrain the judges in their interpretation and application of the definition of a refugee in the 1951 United Nations convention relating to the status of refugees. These measures interfere with and undermine the role of the tribunal and judiciary to act independently on the basis of the material before them and in accordance with the law that is applicable to the jurisdiction that they exercise.

All those matters show that the safety of the tribunal system is, in several respects, dependent on the willingness of the Government to respect the independence of that system, including to review their own decisions, whether of Ministers or officials. That willingness has been lacking in the immigration and asylum field over several years, and there is no guarantee that other areas concerning Government decision making will be immune to that. Amending this Bill will provide an opportunity to show how exclusion of the High Court’s supervisory jurisdiction risks serious failure in relation to each of the fundamental aspects identified: that justice is secured in the tribunal system and, directly related to that, that justice is secured in relation to Government decisions.

That is all I have to say in relation to those amendments. With those amendments, we seek to widen the exemptions or flexibility in Cart. I would be interested to hear what the Minister has to say, whether he has any rebuttal to that or whether he is susceptible to it. However, my feeling, anticipating that, is that we will not press the amendment to a vote today. I have said almost everything I want to say on clause 2, but I wish to briefly—I do mean briefly—explain as part of the clause stand part debate why we will be voting against clause 2.

Ordered, That the debate be now adjourned.—(Scott Mann.)

Adjourned till Tuesday 9 November at twenty-five minutes past Nine o’clock.

JRCB05 Assistant Professor Samuel Beswick, Assistant Professor of Law at the University of British Columbia in Vancouver, Canada

JRCB06 Amnesty International UK

JRCB07 Amnesty International UK (supplementary)