Clause 47 - Commencement and transitional provision

Judicial Review and Courts Bill – in a Public Bill Committee at 2:00 pm on 23rd November 2021.

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Photo of Andrew Rosindell Andrew Rosindell Conservative, Romford 2:00 pm, 23rd November 2021

We resume with clause 47 and amendment 30. I would like to be able to call Anne McLaughlin, but she is not here.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

On a point of order, Mr Rosindell. On behalf of all colleagues, may I say how grateful we are that you allowed us to attend the funeral this morning, instead of sitting in Committee? I thought it was a profoundly moving occasion, and your words were very moving in particular. It showed Parliament at its best.

I just said to the Doorkeepers that I thought the moment when they walked behind the coffin was one of the most moving I have seen as an MP. I thought it appropriate to put on record my thanks for the adjournment this morning, and that we all dearly miss our great friend. It was a very fitting and beautiful service.

Photo of Andrew Rosindell Andrew Rosindell Conservative, Romford

I thank the Minister for his comments on a very sad day for us all.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

Further to that point of order, Mr Rosindell. I do not want to prolong our proceedings unduly, but I think it is important to amplify the Minister’s remarks. Without wishing to embarrass you, you were a very close friend of Sir David. We were all his friends, but you were particularly close to him. We are grateful for your being here this afternoon, and I think we would all agree that it was a fitting final farewell to a much-valued parliamentarian, a dear friend and, most importantly, a husband and father.

Photo of Marco Longhi Marco Longhi Conservative, Dudley North

Further to that point of order, Mr Rosindell. I echo the previous comments. As a member of the new intake, I had the good fortune of having an office on the same floor as Sir David Amess in 1 Parliament Street. As the lift doors open, his office door is immediately in front. It has been a terrible sadness, as you can well imagine, every time I have seen that door with a candle lit in front of it in recent days and weeks.

As a colleague and a fellow Catholic, I felt today’s mass and funeral celebrations were a very fitting goodbye to someone I did not really get to know that well but someone who, as an elder statesman who had been round the block a few times, if I can put it that way, made me feel very welcome. He made a point of coming to say, “Hello. Who are you? Where are you from?” in his indescribable, unique way.

Photo of Tom Hunt Tom Hunt Conservative, Ipswich

Further to that point of order, Mr Rosindell. Extending on that theme, I was also very honoured to be at Westminster Cathedral this morning. I know how close you were to the late Sir David, and I am lucky to class you as a close friend of mine.

Sir David was somebody who was very visible in the Chamber. I remember in my first few weeks after being elected that I wanted to figure out how to do the job effectively, and I went around to canvass some names of people I should talk to about how to do the job effectively as a constituency MP. Sir David’s name came up almost as many times, and perhaps more times, than yours, Mr Rosindell. He was incredibly characterful, and I will always remember the summer and Christmas Adjournment debates when he would fire off 30 or 40 points within two or three minutes, when I would have mentioned barely one or two. It is with some sadness, though, that I say that he was somebody whom I always assumed I would meet and get to know very well, but that I was not given that opportunity. Like my hon. Friend the Member for Dudley North, who is a fellow Catholic, I was very moved by the incredibly powerful mass. I was lucky enough to take communion today—I have had my first holy communion and Father Pat has been trying to get me to have a confirmation: he is keeping his eye on me. It was incredibly moving today, and it might have done the job. I think that I will do that.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

Further to that point of order, Mr Rosindell. May I associate the Labour party with the remarks of the Minister and Conservative Members about Sir David? I commiserate with the Members of the 2019 intake—because of covid, they probably did not get a chance to know him. But they would have got to know him pretty quickly, with us all being back here. As somebody from a very different political tradition, I worked very closely with him for the last five years through his chairmanship of all-party parliamentary fire safety and rescue group, which was astonishing. We all know that all-party parliamentary groups have a multitude of successes and failures. That was an astonishingly powerful and well-organised body, particularly in the wake of Grenfell. It really was a pleasure not only to know him but to see how effective he was as an operator in Parliament. We will all miss him. I know that you will particularly, Mr Rosindell, as a friend. We will all miss him as a friend, a colleague and a wonderful parliamentarian.

Photo of Andrew Rosindell Andrew Rosindell Conservative, Romford

Thank you all very much for those words. I hope that we might send a copy of the report of these remarks to Lady Amess and the family, so that they are aware of some of the kind words that have been spoken this afternoon about Sir David, who, as many have commented, was a very dear friend to me and to many in this room. I am only sorry that some were not able to get to know him as well as I knew him, because he was somebody very special—a fantastic Member of Parliament, a fine constituency MP and a very dear friend to so many. I thank you all for your very kind words this afternoon.

Fortunately, Anne McLaughlin is now with us, so we can move to clause 47 and amendment 30.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I beg to move amendment 30, in clause 47, page 54, line 34,  at end insert—

“(7) Notwithstanding the provisions above, this Act shall not come into force until the Lord Chancellor has laid before Parliament a written statement confirming that no provision in this Act contravenes Article 6 or Article 13 of the European Convention on Human Rights.

(8) The statement under subsection (7) must be laid before Parliament within three months of this Act being passed.”

This amendment would prevent any Act resulting from this Bill from coming into force until the Lord Chancellor confirms, via a written statement to Parliament, that none of its provisions contravene ECHR Article 6 (right to fair trial) or ECHR Article 13 (right to effective remedy).

I thank everybody on the Committee for their forbearance during the last week, while I was struggling to move, and today, when I underestimated how long a usually seven-minute walk to get here would take me. Thankfully, I have an X-ray on Thursday, and I hope that something will come of that.

May I also associate myself and my hon. Friend the Member for Lanark and Hamilton East with the remarks on Sir David Amess? I did not know him; I knew exactly who he was, though. There was that smile that made him stand out—a really genuine smile that reached his eyes. I always noticed that. I did not know him personally, but listening to people speak about him, including many people in the SNP group, who knew him really well and are really hurting, makes me wish that I had. Maybe that can teach us something in this place: that there are people who we can identify with and befriend who have different views from our own. Thank you for allowing me to say that.

I sure that Conservative Members and Opposition Members will agree with the fundamental principles that we should all be afforded the right to a fair trial and effective remedy. There can be little dispute that those are the cornerstones of a justice system that respects the rule of law and principles of natural justice. Amendment 30 seeks confirmation from the Lord Chancellor that any provision in the Bill will be prevented from coming into force if it contravenes article 6 or article 13 of the European convention on human rights: the right to a fair trial and the right to an effective remedy.

We have already debated how provisions in the Bill, such as the presumption for using prospective-only quashing orders, could risk breaching article 6.1 of the European convention on human rights on the right to a fair trial, which requires an effective judicial remedy. The amendment would ensure the Government had the opportunity to make cast-iron guarantees that that will not happen. That would be expressed via a written statement from the Lord Chancellor, laid before Parliament within three months of the Bill being passed.

The Minister may wish to point out that article 13 does not apply to the Human Rights Act 1998, but it could be applicable in the European Court of Human Rights in Strasbourg and that is why we felt it appropriate to include it in the amendment. Strasbourg does not recognise the practice of failing to give human rights without an effective remedy. Rather than stripping away rights, the Government should consider in any proposed review of the Human Rights Act that the right to effective remedy be added. As the Minister has assured us that the Bill will furnish the courts with a broader set of tools, with no risk of restricting individual claimants’ rights, he will surely consider the amendment a gift from me to him to help clarify his position.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

Thank you for your generosity in allowing us to pay our tribute, Mr Rosindell, following this morning’s very moving mass at Westminster Cathedral.

The amendment would prevent any measure in the Bill from coming into force until the Lord Chancellor has provided a written statement to say that no provision in the subsequent Act contravenes article 6 on the right to a fair hearing and article 13 on the right to effective remedy of the European convention on human rights. I assure hon. Members that none of the measures in the Bill contravenes either article 6 or article 13.

The hon. Member for Glasgow North East mentioned remedies. We have the new remedies relating to quashing orders, which are a key part of how the Bill improves judicial review. In clause 1, there are adequate safeguards to ensure that any individual exercise of the new remedial discretions provides an effective remedy in cases concerning violations of convention rights. That is because the measures do not limit the availability of any existing right for such a breach and their use remains open to the court’s discretion. Presumption in favour of any of the remedial discretions only operates in circumstances where its exercise would

“offer adequate redress in relation to the relevant defect” and it may be rebutted where there is good reason to do so. Further, the court is required to consider the interests or expectations of persons who would benefit from quashing of the impugned Act, as well as considering other factors.

On clause 2, regarding Cart judicial review, our position is that article 6 does not require a further right of judicial review in relation to decisions concerning permission to appeal from the first-tier tribunal to the upper tribunal and therefore considers that the measure does not interfere with an individual’s right under article 6.

When the Bill was introduced, the Lord Chancellor at the time signed a statement under section 19(1)(a) of the Human Rights Act 1998 to confirm his view that the provisions in the Bill are compatible with the convention rights. When the Bill passes to the other place, a second statement will be made, as required under section 19, taking into account any amendments. Should any Government or non-Government amendments be made that we felt contravened those statements, we would inform Parliament. It would be a breach of the ministerial code to proceed towards Royal Assent without either amending the provisions or informing Parliament of the issue.

In addition, ahead of introducing the Bill, the Government carried out a full ECHR analysis and published a memo for the Joint Committee on Human Rights setting out that analysis on parliament.uk. The previous Lord Chancellor wrote to the Committee’s Chair when the Bill was introduced and we will engage with the Committee fully should it choose to publish a report on the Bill. In summary, the Bill currently does not contravene either article 6 or article 13, and appropriate measures are in place should that no longer be the case at any point during its passage. I therefore urge the hon. Lady to withdraw the amendment.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

In the light of what the Minister has said about the potential breach of the ministerial code, and knowing how seriously almost everyone takes that, I hope that what he tells me is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 2:15 pm, 23rd November 2021

I beg to move amendment 31, in clause 47, page 54, line 34, at end insert—

“(7) Notwithstanding the provisions above, nothing in this Act relating to Scotland shall come into force without a consenting resolution being passed by the Scottish Parliament.”

This amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland for those provisions to come into force.

As I am sure the Minister is aware, under the Sewel convention the Scottish Parliament should have the final say over any attempt by the UK Parliament to legislate in devolved areas. In recognition of the separate and distinct nature of Scotland’s legal system, article 19 of the Treaty of Union protects the authority and privileges of Scotland’s Court of Session. This is a fundamental part of the UK constitution and this amendment would ensure that the UK Government respect the principles of the Sewel convention and the constitutional arrangements.

Without an amendment specifically guaranteeing the requirement of consent from the Scottish Parliament to any provisions in the Bill that relate to Scotland, we risk interference with Scottish legal processes. The Faculty of Advocates, which was represented at the evidence sessions of this Committee, has said that in Scotland

“judicial review does not suffer from a lack of clarity, and any attempt to codify it is likely to undermine the very flexibility that renders it effective.”

Furthermore, Liberty has also commented on the situation and has said that

“the Act of Union does not serve to enable the UK Government to reshape the jurisdiction of the Court of Session. These are not technical or procedural points. In any event, the administration of the courts and the justice system in Scotland clearly falls within devolved competence.”

I am certain the Minister and Members opposite will be aware that this amendment is not only a reminder that this convention exists, but that it too must be respected in statute.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

The amendment would require the consent of the Scottish Parliament to be given to any provisions in the Bill that relate to Scotland. I am emboldened to say that the word “relate” is in bold in my text, as that word is very important. I have a number of constitutional concerns about the amendment.

To reassure the hon. Members for Glasgow North East and for Lanark and Hamilton East, the measures in this Bill relate wholly to reserved matters. Ministers and officials have been engaging with the devolved Administrations over the course of the Bill, and we will continue to do so when the provisions in the Bill come into force.

I believe we are in agreement that chapter 2, “Online procedure,” and chapter 3, “Employment tribunals and the Employment Appeal Tribunal,” of the Bill relate to matters outside the competence of the Scottish Parliament. Yet this amendment would still apply to the clauses in those chapters and require the consent of the Scottish Parliament before they could come into force.

The majority of the criminal procedure measures also relate only to England and Wales, although, as I have previously noted in Committee, we are aware that the Scottish Government’s position may be that the new automatic online procedure, introduced by clause 3, engages the legislative consent process. Furthermore, we believe that this is outside the competence of the Scottish Parliament, which, in the Government’s view, does not engage the legislative consent process.

With regard to removing Cart JR, I should make clear that the unified tribunal system is a reserved matter, where it relates to matters of reserved policy. Our measures on Cart will apply to the whole of the UK, but only in respect to the matters heard in that tribunal system that fall outside the competence of the Scottish Parliament. The provisions relating to remedies apply to England and Wales only.

If it came into force, the amendment would actually lead to decisions in reserved areas operating differently across the UK, thereby reducing the clarity the Bill currently provides. In line with the memorandum of understanding on devolution, we will continue to engage with the devolved Administration at a ministerial and official level to ensure that we have time to fully understand any implications for the Scottish court system.

On that basis, I cannot accept this amendment and I urge the hon. Lady to withdraw it.

Question put, That the amendment be made.

Question negatived.

Question proposed, That the clause stand part of the Bill.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

This is one of those long ones, Mr Rosindell. This clause sets out when the measures will come into force. While some measures will come into force two months from when the Act is passed, including the coroner’s provisions and two of the criminal provisions, in clauses 14 and 15 and schedule 1, the remainder of the Bill will come into force by regulation.

Question put and agreed to.

Clause 47 accordingly ordered to stand part of the Bill.