Judicial Review and Courts Bill (Second sitting)

Debate between Angela Crawley and Janet Daby

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Janet Daby]

Would you like to respond, Dr Tomlinson?

Dr Tomlinson: I have spent quite a lot of time looking at the online proceedings question in England and Wales, and there are lots of interconnecting challenges around the move to online hearings. I have not spent much time looking at the criminal context, but rather at the use of online proceedings in tribunals. The challenge there with open justice is that online proceedings can potentially enhance open justice in various ways, but also diminish it. There is a real need for clarification of strategy in terms of key things like open justice, but also other areas, such as digital exclusion, in the reforms that we are seeing.

[Angela Crawley]

Q My question is to Michael Clancy. In its report, the Law Society of Scotland outlined questioned the Government’s conclusion that a legislative consent convention does not apply to the abolition of Cart judicial reviews in respect of reserved tribunals in Scotland, and that judicial review is a devolved matter under the Scotland Act in section 126(4). Why does the Law Society of Scotland consider that a legislative consent motion is required? Will one be required for clause 2 of the Bill?

Michael Clancy: We do take the view that the provisions of clause 2 engage legislative consent, otherwise known as the Sewel convention, which would require the consent of the Scottish Parliament. The reason for that is a piece of law that is a bit complicated and a bit tricky. Nevertheless, you began by identifying that judicial review of administrative action is part of the definition of Scottish private law, which is contained, as you say, in section 126(4) of the Scotland Act 1998. That is a significant element in terms of recognising that it is a devolved matter exclusively; it is not split between the reserved areas of law and the devolved ones.

I freely recognise that the Government have taken steps in terms of new clause 11A(5) of the Tribunals, Courts and Enforcement Act 2007, which states:

“Subsections (2) and (3) do not apply so far as provision giving the First-tier Tribunal jurisdiction to make the first-instance decision could…be made by…an Act of the Scottish Parliament, or…an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.”

However, while the Scottish Parliament does not have the power to modify the law relating to reserved matters, paragraph 2 of schedule 4 to the Scotland Act makes provision that applies only to the rules of judicial review insofar as

“the rule in question is special to a reserved matter”.

Special to a reserved matter would of course be a rule that would relate to something like an immigration tribunal, employment tribunal or employment appeal tribunal. Those are the kind of tribunals that one would think about.

In the 2010 Supreme Court case of Martin v. Most, there was a decision that a general rule that applies to both a reserved and devolved matter is not special to a reserved matter. Therefore, our conclusion is that if we follow the rule in Martin v. Most we get to the position where the decision in Eba—in fact, all judicial review matters under Scots private law—engage the Sewel convention and would therefore require the consent of the Scottish Parliament to be complied with, because of course it is declared in section 28 of the Scotland Act that

“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Of course, section 28 provides that the UK Parliament can always legislate for Scotland. That is not in dispute. It is whether the Sewel convention is engaged. I hope that that answers your question.