All 8 Caroline Johnson contributions to the Judicial Review and Courts Act 2022

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Tue 2nd Nov 2021
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Judicial Review and Courts Bill
Commons Chamber

Consideration of Lords amendments & Consideration of Lords amendments

Judicial Review and Courts Bill (Second sitting) Debate

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Judicial Review and Courts Bill (Second sitting)

Caroline Johnson Excerpts
Committee stage
Tuesday 2nd November 2021

(2 years, 6 months ago)

Public Bill Committees
Read Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
Alex Cunningham Portrait Alex Cunningham
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That is very helpful, thank you.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
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Q I wanted to ask a question about online procedures, particularly the coronial inquest where you have said that 95% are carried out by a coroner sitting alone. For the 5% that require witnesses, how does being able to hold inquests online make the system more efficient?

André Rebello: Perhaps I misspoke. When a coroner sits alone, the coroner still hears evidence, and witnesses still come to court. It is just that there is no representation for any of the interested persons; the coroner hears evidence and makes finding and determinations. There is a real issue, though, with remote hearings in that, although many people have found advantages with them, the coronavirus easements did not apply to coroners’ courts. Coroners’ courts have only been able to work through remote hearings by using rule 17 to receive video evidence.

The provisions in this Bill are to bring coroners’ courts in line with other courts. However, there is a real issue in regard to the Equality Act 2010; not everyone can participate in the rule of law and in open justice through remote hearings. Any judge presiding has to be very careful to make sure that everyone can participate. I suspect there are more disadvantages in remote hearings than in having everyone in court, where you can fully appreciate how people are following the proceedings. In the 95% of cases where there is no representation, the coroner still hears evidence. It is not as if the coroner is just reading statements; evidence is still heard.

Caroline Johnson Portrait Dr Johnson
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Q Do you think there are enough safeguards to be sure that people are able to participate, and alternatives if they are not?

André Rebello: With regard to remote hearings or with regard to—

Caroline Johnson Portrait Dr Johnson
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Q You said that some people cannot participate in remote hearings.

André Rebello: No. Basically, with remote hearings, there are all kinds of AV infrastructure challenges with regard to recording what has been said, and people with hearing difficulties being able to follow Zoom or Microsoft Teams. Technically it is quite difficult. It is also difficult for a coroner to evaluate evidence, because they do not have the people in front of them to judge.

Further, there is a danger with remote hearings that we will lose courts. If people can have all hearings remotely, there is a danger that we may not have a court infrastructure in future, for when justice needs to be seen to be done. The correct procedure in my view is that most things should be dealt with in court, and remote hearings should be used where necessary, but that should not become the norm.

Caroline Johnson Portrait Dr Johnson
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Q Can you give an example of where it might have been necessary? I have given evidence to coroners’ courts, in my capacity as a doctor. I remember one specific case where the doctor who had been involved with the child at the time of death was overseas and refused to return for the court. As someone cannot be extradited for the purpose of a coroner’s court, their evidence was not heard. Would allowing online processes enable that individual’s evidence to be heard? Does it apply to evidence being given virtually from overseas?

André Rebello: Under the Coroners and Justice Act 2009, the coroner can receive evidence by video, under rule 17 of the inquest rules. I have certainly received evidence from Australia and, I think, South Africa, with doctor witnesses who had moved overseas and then given evidence. I see no reason why coroners should not receive evidence from overseas. However, if people can attend, it is important, because it is a lot easier to give an explanation about the means someone comes by the cause of death, if everyone is in the courtroom, and everyone can follow the proceedings.

If Parliament brings in remote hearings for coroners and brings them in line with the Courts and Tribunals Service courts, the Chief Coroner will have to issue some very firm guidance on how and when it is used, because I do not believe it should become the norm.

Angela Crawley Portrait Angela Crawley (Lanark and Hamilton East) (SNP)
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Q Much has been said about the importance of having people present when looking into such an important matter, which I understand, but there is an accessibility issue. One thing we have learned throughout the pandemic is that many people have had the advantage of accessibility and the ability to attend. Would it not be a real advantage, in some instances, to have a hybrid performance, so you could retain the formal court setting, with people both present and remote, if required?

André Rebello: Absolutely; if someone needs to attend court and they cannot attend other than remotely, that is fine. At the moment, the legislation relating to coroners allows witness evidence to be given remotely only under rule 17 of the coroner’s inquest rules. The easements that would be provided by the Judicial Review and Courts Bill would enable coroners’ courts to be far more flexible, with people appearing remotely, and also broadcasting. At the moment, under section 41 of the Criminal Justice Act 1925, it is unlawful for a coroner’s court—or any court—to broadcast. The purpose of remote hearings is for participation.

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Caroline Johnson Portrait Dr Johnson
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Q On death certificates, you spoke about treating the last illness or seeing a patient in the last 14 days or after death. I appreciate that at the moment you can see them in the last 28 days or after death, and you seem to be implying that makes a large difference. With increasing face-to-face appointments and the opportunity to see the person after death, why do you believe the change will make a material difference to the number of cases referred to the coroner? I appreciate that the coroner gets involved if you cannot issue a death certificate, but how many cases are there in which the doctor is unable to see the patient after death or in which the 14-day window—between 14 and 28 days before death—is crucial? It seems to me that there would not be many such cases.

André Rebello: Actually, there are many. With the easements in the Coronavirus Act, we are just about keeping our heads above water in the coroner service. Under the Coronavirus Act, any doctor could have treated the patient—it does not have to be the doctor who certifies the death, provided that the other doctor sees the body after death—and we have been able to get medical examiners and other doctors to issue death certificates. These are all deaths from natural causes, which should not ordinarily be reported to the coroner. Hopefully, the statutory medical examiner service will alleviate quite a lot of the deaths that come the coroner’s way, which cause a lot of concern for bereaved families. Unfortunately, a lot of deaths are reported to the coroner unnecessarily. At the moment—gosh—probably 20% or 30% of deaths being reported now do not need to be reported. Doctors could issue, but for whatever reason, the deaths are being reported—I suspect that doctors are busy trying to get back to normal and see patients.

I have concerns about the coronavirus easements lapsing before we bring in the new death certification and medical examiner provisions. I raise this on the record to flag that I can see a storm brewing in, probably, April of next year.

Andy Slaughter Portrait Andy Slaughter
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Mr Leiper, am I okay to ask you about employment tribunals?

Richard Leiper: You can.

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Liz Twist Portrait Liz Twist
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Q Talking of local stakeholders, do you think that the proposals might have an adverse impact on the independence of the magistracy?

Ellie Cumbo: I do not think we have considered that question in detail. Possibly the Magistrates Association would be best placed to comment, and we would usually defer to them. If you would like us to provide an answer at a later date, I am very happy to do that.

Caroline Johnson Portrait Dr Johnson
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Q I want to clarify with Sara; you have talked about the importance of Government accountability, and the importance of judicial review to children with special educational needs and people who may be discriminated against because of a disability. I do not think there is anyone in the Committee who would disagree with you on the importance of those things. However, in practice, the decisions that are governed by the Cart reviews are not decisions of Government; they are decisions of an upper-tribunal court.

Sara Lomri: Absolutely. When I was talking about—

Caroline Johnson Portrait Dr Johnson
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The legislation that I am talking about would not actually affect whether or not a child with special educational needs, or a disabled person, was able to bring a judicial review of the Government’s decisions on their behalf. It does not really apply to this Bill—or have I misunderstood?

Sara Lomri: I think you have. I was painting a picture of the kinds of clients that I represent when using judicial review. Clause 1—

Caroline Johnson Portrait Dr Johnson
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But does it affect the abolition of the Cart reviews?

Sara Lomri: Clause 1 is about the presumption of prospective-only orders, which absolutely would impact on that client group.

None Portrait The Chair
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Order. I am afraid that we have come to the end of the time allotted for this panel. I thank the three witnesses for their evidence.

Examination of Witnesses

Louise Finer, Stephanie Needleman and Steve Valdez-Symonds gave evidence.

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None Portrait The Chair
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Thanks very much for attending today’s meeting. I will start with Dr Caroline Johnson.

Caroline Johnson Portrait Dr Johnson
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Q I want to ask a question about judicial reviews, and in particular the numbers of cases. In earlier evidence, we were told that there were a 1,000 cases of judicial reviews per year. I wonder how many of those would be the Cart review that we are talking about in relation to the Bill. Do you have any figures on that?

Dr Tomlinson: I do not have the exact full set of statistics to hand, but I would happily supply those to the Committee. The general picture of judicial review is that ordinary judicial review, by which I mean non-immigration cases, is around a few thousand cases issued every year. Numbers have been declining in recent years. On the immigration side, for a good period of time—a couple of decades—there have been more immigration judicial review cases. They are obviously mostly heard in the upper tribunal now. The numbers fluctuate for a variety of complicated reasons, but my understanding is that they have been coming down in recent years. Cart is a small subset of judicial reviews. I can provide the full statistics to the Committee, but that is the overall picture.

Caroline Johnson Portrait Dr Johnson
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Q The other thing that we have been advised on is the success rate of the Cart review in immigration cases. We have been given figures of between 0.22% and 5.7%. Regardless of where in that range you feel that the real figure lies, it is substantially lower than the figure for a standard judicial review. What is the discrepancy, and why do you think it is present?

Dr Tomlinson: If you do not mind, I would like to comment on the figure, which is an important starting point. The original figure provided by the independent review of administrative law was 0.22%, which is an incredibly low success rate, but that figure was arrived at through the IRAL’s expert panel simply looking at published judgments. The Cart procedure is such that it is very unlikely to produce public judgments, so the panel looked only at a very narrow sample of the overall case load. The 0.22% figure is basically flawed. It is not correct, and the Ministry of Justice has since accepted that and provided a new figure of 3.4%, as I understand it. In various ways, I think that is also a deflated figure. Importantly, success is measured in the narrowest way possible. With a wider definition of success, you can get to a higher success figure.

It is difficult to say with any precision what the figure is, but I can say it is certainly not 0.22%. It is 3.4% with a very narrow definition of success, and it is higher than that if you have a different definition of success. The best figure, although it is not a precise figure, is that about one in 20 cases are successful. Of course, one in 20 is a relatively high success rate. You are challenging judicial decisions, so you would hopefully expect them to be of better quality, and so on. In my view, the success rate is not as low as the initial figure that was put out suggests.

Caroline Johnson Portrait Dr Johnson
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Q Sorry, but the question was: what is the figure for a standard non-immigration-related judicial review, and where do you think the disparity comes from, if there is one?

Dr Tomlinson: Again, I am not trying to dodge the question. It is very difficult to define in a precise way what success in a judicial review looks like. To take one example, most strong cases settle relatively early in the procedure. Settlement is a really important part of the judicial review system, but the way they show up in the statistics is that they look like withdrawn cases. The various statistics that we have vary, but I think we can accurately say that the Cart success figures are lower than the average judicial review success figures. By how much would be very difficult to say precisely, but one in 20 is still a reasonable success rate.

Caroline Johnson Portrait Dr Johnson
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Q Professor Feldman, who is professor of English law at the University of Cambridge, gave evidence earlier in which he said the success rate for a non-immigration-related judicial review was over 50%. Why do you think that they are 10 times more likely than immigration-related judicial reviews to be successful?

Dr Tomlinson: I think the figure that Professor Feldman is relying on in making that claim is the success rate after a hearing. As I have just explained, many judicial reviews—the majority of them—do not reach a full hearing. When you get to that point, the success and failure rate is roughly 50:50. It obviously goes up and down in various directions ever year, but it is roughly 50:50. Overall, the success rate is potentially a bit lower, depending on how you define success. Again, I would say that potentially the best explanation for why success rates are lower in Cart judicial reviews is that you are talking about judicial decisions, rather than administrative decisions, being challenged by judicial review, so you can potentially expect a better quality of decision that is likely to withstand judicial review a little more robustly.

Caroline Johnson Portrait Dr Johnson
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Q Just to be clear, what you are saying is that in a standard non-immigration judicial review a good case is more likely to settle before court. Although 50% are successful in court, the likelihood is that even more cases taken forward will be successful, because the better cases will have been filleted out beforehand.

Dr Tomlinson: Would you remind repeating that point? My connection dipped for a moment.

Caroline Johnson Portrait Dr Johnson
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Q What you are saying is that 50% of the cases that ultimately reach court for a non-immigration judicial review are successful, but the likelihood of cases being successful is probably higher than that because the better cases will have been settled out of court. You also made the point that the Cart judicial review is the review of a judge’s decision, and not a review of the Government’s decision. In effect, it is not the same as other judicial reviews, because it is the court asking the High Court to judge the opinion of a court of the same level, rather than a judicial review, whose purpose is to hold Government and Government decisions to account. Is that correct?

None Portrait The Chair
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Sorry, there were two questions there. Before the witness had the chance to answer the one about the percentage of cases, you came up with another one. Were you clear on the first question, Joe?

Dr Tomlinson: I think so, yes. The headline point is that the statistics we have on judicial review—as a wider point, what the Government collect on judicial review could be much better—only give you a limited insight on success rates overall at different stages.

On the second question, if I have understood correctly, yes, obviously, Cart judicial reviews are of a slightly different nature, in that they challenge decisions of the tribunal. However, there are good reasons potentially, still, to provide judicial review of those decisions. Ultimately, what is at the base of those cases are the rights of individuals. While I can see there is a distinction to be drawn there, which was extensively dealt with in the initial Cart decision by the Supreme Court, the distinction in some ways is immaterial to the rights of the people who bring these cases.

Caroline Johnson Portrait Dr Johnson
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Q That being the case, if you are in support of maintaining the Cart review of judicial decisions in the upper tribunal, do you therefore believe that a review of all decisions at courts at that level should be available by judicial review? Do you think everyone should get the third chance? Would anyone else on the panel like to comment on that?

Aidan O'Neill: The first issue, of course, if one takes the 5% figure by way of success—I agree with Joe Tomlinson that it is a high figure—is that one always goes back to the idea: is it better to let one innocent person be convicted of a matter or to let nine guilty go free? In a situation where you have one in 20 Cart or Eba judicial reviews being successful after a hearing, that shows that there has been an error in law in relation to the specific individual case, which has potentially incredibly serious consequences when one is dealing with asylum and immigration cases. In principle, I do not think it is a question of playing with numbers and saying, “Well, only 5% are successful, so it does not matter—we can get rid of the whole position in terms of allowing errors of law to be identified and reviewed at second instance and by way of judicial reviews in other cases.”

I also agree with what Joe Tomlinson has said, which is that in the Cart and Eba situation, one is dealing with the fact that judges, both at first instance and in the upper tribunal, have looked at the matter and therefore are legally trained already, but they are not infallible. That is the whole point about judicial review; matters are not infallible. One would hope that there would therefore be a much lower percentage of areas in which they have been shown to err in law than is the case for simple administrative bodies, which are not necessarily particularly legally qualified and are certainly not judicial bodies.

I would be wary of the attempt to compare matters that are not alike by saying that there is a 50% success rate on non-immigration judicial reviews. I must say I would be very surprised at the basis of that statistic, but if it is the case, then—[Inaudible.] The point is that you are stopping those 5% of cases ever being rectified, and that is not a situation that I think Parliament should properly be allowing.

None Portrait The Chair
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Last point, Caroline, because there are other questions. Actually, Michael just wants to come in on your previous question, before you make your final point.

Michael Clancy: I agree with what Aidan O’Neill has said. Of course, in Scotland it is a different question in some respects, because as far as I recollect from the IRAL report, there were no statistics about the situation of judicial review in Scotland. The scale of things like that in Scotland is quite different, and one might expect only 100 judicial reviews to get to the Court of Session in any one year. The proportionality arguments about the use of judicial time and the expense are of a different order and would need to be separately vouched, I would say, before the same kind of decision taken in relation to Cart would be taken in relation to Eba-type cases.

Let us remind ourselves exactly why we have judicial review, which perhaps creates a tension between what one might describe as ministerial legality or quango legality judicial reviews and other types. Lady Hale said in Cart that

“the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law—that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise.”

I think that that grounds us on the basis for having a law of judicial review, and it is something that we should not depart from without very serious consideration indeed.

None Portrait The Chair
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Unless you have a really pressing question, Caroline, I would like to move on to the next speaker, because you have taken quite a bit of time.

Caroline Johnson Portrait Dr Johnson
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I have just one quick question.

None Portrait The Chair
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Right, one quick question and one quick answer.

Caroline Johnson Portrait Dr Johnson
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Q I do understand what you are saying about the importance where the decision has been taken by Ministers or Government, but I am still not clear why it is important to review the opinion of another judge. How do you ensure that the number of erroneous judgments falls? Although I can see that having the Cart review has picked up some cases where judgments were unlawful or wrong, how, on an ongoing basis, do the judiciary make sure that those numbers fall?

None Portrait The Chair
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Who wants to take that?

Aidan O'Neill: I do not understand the question. How does the judiciary make sure that—

Caroline Johnson Portrait Dr Johnson
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Some people say that 0.2% of the judgments are incorrect, and some people say 5%.

Aidan O'Neill: Nobody is saying 0.2% reputably. I do not think one can take that on board. The IRAL report even accepts that its figure was wrong, so do not even start on that. You start with the claims made subsequently when this Bill was introduced, which were that the figure was at least 3%. That massive change was made in response to work done by academics such as Joe Tomlinson. Let us not start from 0.2%; let us use the better evidence we have heard so far, which is at least, or around, 5%. Ask me the question on that basis.

Caroline Johnson Portrait Dr Johnson
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Okay, so on the presumption of—

None Portrait The Chair
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Order. Janet Daby.

Judicial Review and Courts Bill (First sitting) Debate

Full Debate: Read Full Debate

Judicial Review and Courts Bill (First sitting)

Caroline Johnson Excerpts
Committee stage
Tuesday 2nd November 2021

(2 years, 6 months ago)

Public Bill Committees
Read Full debate Judicial Review and Courts Act 2022 Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 2 November 2021 - (2 Nov 2021)
None Portrait The Chair
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I am conscious of time. As I said earlier, we have to move on to the second panel soon, so this will be the final question. I call Dr Caroline Johnson.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
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Q I have a question about the potential for quashing judgments not to be retrospective. To what extent does the legislation provide protection for the individual and balance that with the potential for political activity? How does it make sure that judges have good guidance on when they should and should not use the measures that will become available to them?

Professor Varuhas: One of the motivations for the provisions is to provide the courts with flexibility to adapt remedies to the particular needs of the given case. That is a response to a series of Supreme Court decisions that have held, contrary to long-standing authority, that a funding of unlawfulness automatically voids administrative measures as if they never existed. That has never been the position, because there has always been remedial discretion to modulate the effects of unlawfulness.

The Bill reasserts that remedial flexibility so that remedies can be tailored to the particular needs of relative interests and values implicated in the facts of the case. In proposed new section 29A(8) of the Senior Courts Act 1981, you have a list of factors that will guide courts in exercising their discretion, and those factors are drawn from the common law, so dovetail with pre-existing doctrine. Importantly, they give litigants and the Government fair warning of the factors that will bear on remedial decisions. Subsection (8) requires that

“the court must have regard to”

those factors, which has the benefit that the court will apply the same framework in every case. That provides consistency of principle and ensures transparency, because the court will have to work through those particular factors to reach a conclusion regarding what type of order ought to be given on the facts of the case.

In my view, one problem with subsection (9) is that it erects a presumption. It is a particularly weak presumption, and therefore one might question what the justification for it is, but more generally I am not necessarily in favour of a presumptive approach one way or the other, because that can undermine the court’s capacity to adapt to the particular facts of the case and respond to the particular factors that arise—the public interest in good administration, the interests of third parties and so on. Necessary flexibility is built into the scheme, but there is also fair warning of the factors that will be taken into account pursuant to subsection (8), which is a particularly important provision in that regard.

None Portrait The Chair
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I am conscious of the time, and I think the Minister will want to ask the final question, so I will take a short response to Dr Johnson’s question from one of you. Then I will move across to the Minister before we close the panel.

Professor Ekins: Briefly, I agree with everything that Jason said. One could add a little more detail perhaps to the factors in subsection (8), tying in with Sir Stephen’s point about the significance of whether something is a legislative act. That seems like something that should be at the forefront of the court’s mind. It is a weak presumption in subsection (9). One could either remove it or tailor it, narrowing it so that the presumption arises only where the decision making in question is legislative in character or on a general policy decision, rather than casework, to use Sir Stephen’s term. At the moment, it is a very broad presumption, and a very weak one, and it might be more useful if it were narrowed and applied in a more focused way.

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None Portrait The Chair
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Q Thank you. Dr Jonathan Morgan, do you want to say a bit about yourself and your view on the topic? Then we will open up for questions.

Dr Morgan: My name is Jonathan Morgan. I am a reader in English law at the University of Cambridge and a fellow of Corpus Christi College. Like any academic, I would be delighted to address you on the sexy subject of constitutional theory, but having heard what my learned friend has experienced, I will not do that now. I will just say a couple of things about the Bill before us.

It seems to me that clause 1 is highly welcome, but it needs two significant amendments to make it perfect. Clause 2, which is on the Cart review, is compatible with the rule of law, but there are some very real costs to doing this, and Parliament needs to confront them. One of the costs is that the very few people who succeed in Cart reviews will not have that avenue in future. I am happy to substantiate those in questions, but I will not enlarge on that now.

Caroline Johnson Portrait Dr Johnson
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Q I have a question for Dr Morgan. I am not a lawyer, so forgive me if this question is insufficiently sophisticated. The Cart review is a judicial review of the upper tribunal in the immigration service. My understanding is that judicial reviews are designed to review the capacity of the Government to make a lawful decision, but we have heard that the upper tribunal is not a Government decision; it is a court decision. Is the Cart judicial review unusual in that respect? Are there other examples, or is it an anomaly that there is a review of a decision by a senior court, rather than a Government decision?

Dr Morgan: I think you have put your finger on it, lawyer or not, because Cart deals with a fairly unusual situation, exactly as you have said. This is to do with the level of appeals within the judiciary. Critics of clause 2, who say that this is doing violence to the rule of law and is setting a bad precedent by immunising the Government from being judicially reviewed, are therefore somewhat missing the point. Clause 2 has its cost, but I do not think it immunises Government decisions from judicial review. It simply says how many reviews or appeals there should be within the judiciary. I was here for the previous panel of witnesses, and in terms of whether you have permission to review within the court system, the number of “bites of the cherry” is a good way to put it.

One overall criticism of the Supreme Court might be that it failed to give proper respect to the tribunal system as a branch of the judiciary. It had a slightly legacy, old-fashioned view of the tribunal system as something that needed to be under the supervision of the High Court, and so on. That is why Lord Carnwath, who, as we have heard, is a former Senior President of Tribunals, has been a critic of the Cart decision. It is important to see clause 2 as to do with arrangements within the judiciary. Yes, there is an ouster clause in clause 2, but it does not immunise administrative or Government decisions. It immunises decisions of what is, in effect, a court by another name—the upper tribunal.

None Portrait The Chair
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Dr Feldman, do you want to come in on that? I noticed that your volume was quite low. If possible, could you raise your voice a little bit?

Professor Feldman: I beg your pardon; I did not hear that.

None Portrait The Chair
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Q Would you like to respond to the question? If you do, could you please raise the volume a little? You were very quiet in your opening remarks.

Professor Feldman: Thank you. The only thing I would add to what Dr Morgan has said is that judicial review is seen as a general safety net. One of its functions is certainly to scrutinise Government decision making and action, but it is there as a backstop to deal with unlawful action by any public body. One starts with the presumption that judicial review is available unless there is some specific reason for excluding it. It is clear that the justification for interfering with access to judicial review may be stronger where a body is a judicial body, and where a litigant has already had the chance to have his or her case heard by an impartial and independent tribunal, rather than simply by an administrative body.

Caroline Johnson Portrait Dr Johnson
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Q I have a quick question, and forgive me for not knowing this. The upper tribunal is a superior court of record that, according to my notes, is equivalent to the High Court. Is it normal for High Court decisions to be subject to judicial review?

Professor Feldman: The answer is that the courts held in Cart that being a superior court of record does not immunise a body from being subject to judicial review. For practical purposes, the High Court is immune to judicial review, because it is the High Court that carries out judicial review. It extends, as they used to say, to all inferior courts and tribunals—that is, below the level of the High Court—as well as public officials. It is a matter of basic principle that the upper tribunal was to be subject to this, even if, as Lord Justice Laws said in Cart, the upper tribunal would be seen as the avatar of the High Court.

Dr Morgan: In my view, this is what went wrong in 2007, so apologies to any Members who were in Parliament then. In 2007, Parliament thought that by designating the upper tribunal as a superior court of record, it would immunise it from judicial review. That is what the Government argued in Cart, but they failed to convince the High Court, the Court of Appeal and the Supreme Court.

To ingratiate myself with Members, I will say that the fault was not only that of Parliament but that of the Leggatt report on tribunals, which said that there should not be judicial review of the upper tribunal and that by designating it a superior court of record, Parliament would immunise it from judicial review. I am afraid that Sir Andrew Leggatt turned out to be wrong on that when it got to the courts. It is true that Leggatt had said that there should be an express ouster clause, which Parliament did not put in. If Parliament in 2007 had gone for the belt-and-braces approach and not relied only on the status of the upper tribunal as a superior court of record, Cart would never have happened and we would not be here today discussing it. In a way, this problem has been 20 years in the making.

Caroline Johnson Portrait Dr Johnson
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Q Just to be clear, it is the equivalent of the High Court but it is not treated as such.

Dr Morgan: More or less. I think Lord Justice Laws called it the alter ego of the High Court, but that is not quite the same thing.

Andy Slaughter Portrait Andy Slaughter
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Q May I clarify whether, at present, a judge can make a quashing order limiting or eliminating its retrospective effects, or suspend the effect of a quashing order? There has been some debate around that, given the proposals in the Bill.

Dr Morgan: I wrote an article about that in 2019 before IRAL was even thought of. It is not like me to be ahead of the trend. In it, I analysed in particular the Supreme Court’s decision in Ahmed and others v. HM Treasury—the freezing orders case. Ahmed causes enough doubt on the question that legislating to put it beyond question is a worthwhile use of Parliament’s time. There are some precedents the other way—in a case called Liberty, the divisional court suspended a declaration—but on quashing orders, the reasoning of the Supreme Court in Ahmed (No. 2) suggests that it is just not possible to suspend a quashing order. In my view, that is unfortunate, because judicial review remedies are in every other respect discretionary, so why not here? In the debate on IRAL in the House of Lords, Lord Hope said that he was dismayed to be in a “minority of one” when he dissented in Ahmed on postponing it. He certainly approves of clause 1. It is at least a doubtful point, and sufficiently doubtful that the legislation is worth it.

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James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

Q Thank you very much, that is a fair point. On the matter of resource, it clearly is a political point. It is, after all, the most fundamental role of Parliament historically. You will be aware that we referred to the 2004 Bill—I think it was introduced in 2003—and you have made the point that it is effectively long-running governmental aim, regardless of party to address this. I think I am right that in when the Immigration and Asylum (Treatment of Claimants, etc.) Bill was in Committee, the then Minister, the right hon. Member for Tottenham (Mr Lammy), said that at that time it was something like 3.6%, so it seemed to be viewed then by a Government of a different colour, on the proportionality issue, disproportionate.

I had the great privilege of attending the Lord Chancellor’s swearing in. 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, which is incredibly precious. Arguably, there is a context which goes back some years which seems to recognise on both sides that this is disproportionate in resource terms.

Dr Morgan: I agree. This does not seem to be a partisan point. It is about how best to deploy the resources of the judiciary. I hope the judges have been consulted on this reform, but retired judges who speak on it in the House of Lords seem to be sympathetic to the objectives.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

Q Dr Morgan, you talked about people in these situations being very vulnerable. Obviously, it is important that we get as many of these decisions correct as possible. Why are the very few appeals that are successful, successful? Are there other ways in which we could reduce the number of people who may have had an erroneous decision? In particular, where there has been a win in the Cart judicial review, is it due to legal technicalities of process and, if so, how much difference would that have had on the actual decision of the upper tribunal if they had followed the process? Would the person have had the same outcome?

Dr Morgan: The answer might be to a slightly different question. I refer the Committee back to some things that were said in Cart itself. Both Baroness Hale and Lord Phillips, two Presidents of the Supreme Court at different times, said the reason why there are so many immigration and asylum challenges is because people are desperate. Lady Hale said:

“There is every incentive to make the road as long as possible, to take every possible point, and make every possible application.”

She went on to say she did not blame people, because people are desperate, and we can hardly blame them for doing this, but she said that that was why there was such a problem. It does create a resource problem for the courts, because in the immigration and asylum system there is bound to be a huge number of applications, even if most of them are doomed to fail. In fact, Lord Phillips seemed to recognise that Cart was sowing the seeds of a great problem. He said:

“The stringency of the criteria that must be demonstrated will not discourage a host of applications in the field”.

He was the judge who came closest to saying we should not have had Cart judicial reviews, as they are now known, at all.

That is one reason why this creates such a problem: people will try every avenue to challenge a decision, even in a fairly hopeless case, for reasons that we can all appreciate. That is why I think an even more stringent approach than Cart is perhaps needed to close down the avenue, if that is what you want to do.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

Q I guess I was asking about concern about those few people who may have had a change in decision and would argue against that change. I am interested in understanding the reality of those people’s situations. Would the decision of the upper tribunal have been the same had the legal process been followed? Are those decisions based on legal technicality rather than merits of case?

Dr Morgan: The statistics that the Government presented in their response to the consultation used a criterion of success that I think answers your question. A successful Cart judicial review did not just mean that the High Court sent it back to the upper tribunal; you then had to win in the upper tribunal, so you actually had a good case on the facts. The Government came up with a figure of 3.5% success in that sense, so I do not think that they could be written off as legal technicality cases, although some people do successfully get a Cart JR and then fail when it goes back to a substantive hearing, and it could fairly be said that some of those are legal technicalities.

Members in the Second Reading debate referred to various case studies of actual live cases where something had clearly gone badly wrong and it was only a Cart JR that rescued it. I cannot remember whether it was 50 cases per annum or 50 cases in total—it is not a huge number—but in each case, it really matters to someone’s life.

None Portrait The Chair
- Hansard -

Are there any final questions? We are running short of time, but I will take one more if anybody wants to come in.

There are no further questions from Members, so I thank both witnesses for coming in to give evidence in person. It has been very useful indeed.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Judicial Review and Courts Bill (Third sitting) Debate

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Judicial Review and Courts Bill (Third sitting)

Caroline Johnson Excerpts
Committee stage
Thursday 4th November 2021

(2 years, 6 months ago)

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Marco Longhi Portrait Marco Longhi
- Hansard - - - Excerpts

Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.

These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - -

It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.

I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).

In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.

We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

If the Minister simply wants to put more in the judges’ toolkit, and does not expect a presumption in favour—or a default position, as I said earlier—will the hon. Lady support one of the upcoming amendments to stop that presumption?

Caroline Johnson Portrait Dr Johnson
- Hansard - -

I am talking here of a suspended order specifically. Personally, I would trust the judges to have the discretion to look at the case in front of them, the law as it stands and the situation in which they find themselves, and make a measured judgment. Under this clause, they have the discretion to use the orders as they see fit and proper, and I have absolute trust in our judiciary to use them properly.

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

Judicial Review and Courts Bill (Fifth sitting) Debate

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Judicial Review and Courts Bill (Fifth sitting)

Caroline Johnson Excerpts
Committee stage
Tuesday 9th November 2021

(2 years, 6 months ago)

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James Cartlidge Portrait James Cartlidge
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Under our current system, if a case is brought unsuccessfully to any chamber of the first-tier tribunal, it is possible to apply to the first tier for permission to appeal to the upper tribunal. If that permission application is refused, an application can be made to the upper tribunal for permission to have the case heard in the upper tribunal. If that fails, an application can be made to the High Court to judicially review the decision by the upper tribunal to refuse permission to appeal. This was the state of affairs brought about by the Cart judgment.

Since the Cart judgment, there have been on average 750 such cases a year. We do not believe that was the intention when the Supreme Court decided Cart. Therefore, clause 2 seeks to remove Cart judicial reviews, by way of a narrow and carefully worded ouster clause.

The Government want to remove Cart reviews because we firmly believe that the situation is a disproportionate use of resources in our justice system. Users of the tribunal system not only have the chance to seek administrative review—for example, if challenging a Home Office decision—but can appeal that decision to the first-tier tribunal and, upon losing that appeal, have both the first-tier and upper tribunals consider whether it is necessary to appeal that decision. To then be able to judicially review a refusal by the upper tribunal is an unnecessary burden on the system. That is not enjoyed in most other areas of law. We are yet to hear from the Labour party why it thinks that immigration cases should have such an exceptional additional right.

Our view is shared by some in the Supreme Court. Lord Hope of Craighead, who was one of the judges in the original Cart JR ruling, has stated that

“experience has shown that our decision has not worked”.—[Official Report, House of Lords, 22 March 2021; Vol. 811, c. 710.]

He agreed that it is time to end this type of review because of its inefficiencies.

The independent review of administrative law, from which the proposal of this clause comes, concluded that Cart reviews were effective for claimants only 0.22% of the time. That figure was the subject of much criticism, with several critics questioning the independent review’s analysis. Officials have worked with academics, judges, practitioners and non-governmental organisations to come to a more definite figure, and concluded that the claimant success rate for judicial reviews in this area is around 3.4%. It is a higher figure, but still incredibly low. Lord Brown’s words in the Cart judgment are relevant. He said that

“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

We can consider that rate against the claimant success rate for general judicial reviews, for which the independent review found that the general consensus is that it ranges from 30% to 50%. Colleagues will recall Professor Feldman suggesting in evidence that the figure is around 50%. Either way, it is well over 10 times more than the figure for Cart JRs.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - -

Does the Minister think it is a little strange that while Opposition Members argue for those immigration cases to maintain having three bites at the cherry, they do not make the same argument for other cases with potentially higher success rate?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I am grateful to my hon. Friend, who speaks with great expertise, for making that incredibly important point. Given her medical professional background, she is aware of the importance of the law in good public administration and why the proportionate use of resource is incredibly important. She is absolutely right: we and our constituents have still not heard an explanation as to why, uniquely, immigration cases should have this special right. I am bound to point out that the longer an immigration case is in our courts, the claimant could argue that they have a stronger case to be given a permanent right to remain on human rights grounds.

--- Later in debate ---
The procedure in Cart is both an accelerated and a constrained procedure. There are tight limitations on both timescales and process, and in the way that matters are dealt with on paper rather than orally, so the courts have taken all those matters into consideration. It is not as though the Government are discovering that, for the first time, they have come across some terrible area of judicial profligacy.
Caroline Johnson Portrait Dr Johnson
- Hansard - -

The hon. Gentleman is making an argument about the importance of being able to review almost any decision. He said he accepts that judicial review in normal circumstances is looking at Government administrative decisions, and that is what it was set up for, yet in this particular case—the Cart case—it is reviewing a judicial decision. Will the hon. Gentleman therefore clarify whether it is his position and that of the Opposition that all judicial decisions made at this level should be subject to review, and that this third bite of the cherry, as the Minister has said, should not be open only to those undertaking immigration cases? As his hon. Friend the Member for Lewisham East said, those are serious and important cases, but other cases going through the courts also have serious and profound consequences for those taking part in them. Should everybody be able to review a decision that has been made at High Court level?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

The answer is that it is horses for courses, or Carts for carts. The hon. Lady says that this is just about immigration cases. Let me say first that it is important to correct decisions that have significant consequences for individuals or society more generally. However, the reason I gave a number of case summaries was to show not just that there are a number, but that they are quite compelling cases.

A little chill ran down my spine when I heard Government Members talking about gaming the system and getting out of the country. I wonder whether they would use those analogies in relation to other types of case. We have an extremely low success rate in prosecution and conviction for rape, but I do not think that the vast majority of those cases that do not result in a conviction would be described as gaming, in the way that apparently 97% of these cases are described.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

It is not a comparison. It is asking the Government to say why they think it is gaming if a case that has been prosecuted through the courts or taken to the administrative people is unsuccessful.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

I am sorry if my question was not clear, but I have not really had an answer to it. Do the Opposition believe that all judicial decisions made at upper tribunal or superior court of record level should be subject to review in the way that the Cart JR provides specifically for immigration cases?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

We have explored at some length the effect of Cart as it operates at the moment, but I have not heard from the Government how they think those cases should be addressed, other than saying, “Well, every system has its losers and we will just have to live with the consequences of that,” either because of the financial cost or for some other reason.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

Again, I am sorry if I am not explaining my question clearly, but does the hon. Gentleman believe that all people who take a case to court, perhaps with profound consequences on their lives, should have that third bite of the cherry? Is he arguing for all decisions to have judicial review, or does he believe that cases in the Cart—that is to say immigration cases—should specifically get an extra third bite that others do not get?

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

I am not going to go back to third bites of the cherry again. I know there is an idea that somehow there is an unfairness or a special privilege or pleading that exists in these cases, but that is not the way the law has developed here. The Government need better arguments on how the type of cases that Cart deals with should be dealt with, as my hon. Friend the Member for Lewisham East said. If the answer in Cart cases is that we want to get people out of the country, that can result in torture, death, and people and their families being put in extremis, as we saw clearly in the case summaries I gave,. That is what I am not hearing.

I am repeating myself, Mr Rosindell, so I will not go on further and I will draw my remarks to a close. Something caught my eye the other night when I was looking at the Government’s response to the consultation they undertook when they were dissatisfied with Lord Faulks’s report. The responses to that consultation were also overwhelmingly against them, and they commented:

“Respondents argued that, at most, there are a handful of court decisions that were arguably incorrect and that, therefore, there isn’t a wider problem to address. This reasoning is predicated on the view that a problem is not a problem unless it happens often. The Government is not persuaded by that argument, since even a single case can have wide ramifications.”

That is their argument and, in some ways, it parallels what the right hon. Member for South Holland and The Deepings said previously about the need to look in more detail at types of judicial review to see if they are meritorious or not. The Government say that

“even a single case can have wide ramifications.”

If that applies to judicial review more widely, why does it not also apply in Cart cases?

Until the Government can sufficiently address how they will deal with successful cases in Cart, why they think this particular area of law needs the attention it gets in this Bill and why the development of judicial review here cannot be left to the senior judiciary, as it is in almost every other case, we will not support the clause and we will vote against the clause stand part.

--- Later in debate ---
Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

I certainly will. If we are talking about saving £400,000, here is my suggestion for another way to do it: do not criminalise legitimate asylum seekers simply because we did not supply safe and legal routes, and they were so desperate that they arrived in this country by boat. Some £400,000 per year is what it will cost to criminalise them, according to the Refugee Council of England. Just do not do that and we will not have to worry about that cost saving.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

Will the hon. Lady give way?

Caroline Johnson Portrait Dr Johnson
- Hansard - -

It is therefore the hon. Lady’s position that the Government should give legal passage to those people who are arriving on boats from France—perhaps put on ferries for them? Does she recognise that that could lead to increased trafficking of people and increased suffering?

Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

No. I still think that is an absolute nonsense. If we are going to have a debate about the Nationality and Borders Bill and the wickedness of pushing back not boats, but people—human beings are on those boats—I am happy to do so, but I do not imagine the hon. Lady will be happy with that. I am happy to have a conversation about that afterwards.

--- Later in debate ---
Anne McLaughlin Portrait Anne McLaughlin
- Hansard - - - Excerpts

That is an excellent intervention and I absolutely agree. Interestingly, my notes state that we are not just talking about immigration. I agree about the hostile environment; it is vile. If I am right in saying that most of them could not care less about migrants, let us talk about cases of access to vital benefits for people with disabilities and others facing destitution and homelessness, who will be affected. Those are people who have been left without a last line of defence. This legislation will affect all four chambers of the upper tribunal. Individuals will no longer be able to apply to the High Court.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

The hon. Lady said that she believes that we do not care about migrants. I find that deeply offensive. As a paediatrician I have worked with children who have been alone—unaccompanied asylum seekers—examining them and looking at their injuries and scars. We do care very much about migrants and reducing people trafficking—this evil, barbaric trading of people, which we need to stop.

Judicial Review and Courts Bill (Sixth sitting) Debate

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Judicial Review and Courts Bill (Sixth sitting)

Caroline Johnson Excerpts
Committee stage
Tuesday 9th November 2021

(2 years, 6 months ago)

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James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

I am talking about 2010. The hon. Gentleman knows full well that there is no parallel universe in which difficult decisions did not have to be made. Had Labour stayed in power in 2010, they would have made significant cuts to the Ministry of Justice. That is a fact, but we are here today and looking to the future, and the future is digital. Digitalisation offers many ways to improve and streamline justice, but of course we must ensure that safeguards are in place. I will come to a few of the specific questions, and then to the amendment.

Probably the most important question is what happens if the defendant does not receive notification of the charge or conviction. How will they respond? What do we do? We may be confusing two procedures. There is the single justice procedure, and there is the new procedure—I simply call it the automatic procedure. The hon. Gentleman is right: even the acronym is impossible to remember, let alone the full name. In the SJP, it is worth stressing that defendants who have no knowledge of proceedings brought against them via summons or requisition until after a magistrates court has begun to try the case will be able to make a statutory declaration to restart the proceedings—that is, for example, if the correspondence was sent to the wrong address. To reassure all colleagues, in the automatic procedure, the person considered has to opt in. If they do not receive notification, that procedure will not be used. It is fairly straightforward, and an important safeguard.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - -

Can my hon. Friend confirm what would happen if somebody did not receive the post, the case went to court, and they were convicted in their absence? Could that happen, or would they have to be informed?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

That is a very good question. To be clear, they have to opt in. If they received it and did not respond, they would not have been able to opt in. Therefore, the online procedure would not have taken place. I understand why my hon. Friend asks that question.

The previous Government consulted on this proposal from September to November 2016. The Government’s response in February 2017 to their consultation on transforming our justice system set out their intention to proceed with the new automatic online conviction and standard statutory penalty procedure, otherwise known as an acronym that I will not attempt, interesting as it is.

Open justice is a very important question. The hon. Member for Stockton North, as a former journalist, will very much respect the fact that matters of justice are of intense interest to the media and to journalists, and he is right that it is important in our democracy that we give them that access. We have to ask how much interest there would be in someone who has not paid a fine on an unlicensed fishing rod and so on, but to be clear, case information, including details of cases to be considered and outcomes, will be made available to the media and other interested parties in line with the criminal procedure rules.

The common platform is a very important question. There is possibly a slight confusion, which I can understand, as it is complex and there are lots of different clauses and procedures. Strictly speaking, in using the automatic procedure, the defendant is not using the common platform. It is a separate public-facing interface.

The common platform is used by practitioners and the criminal justice system. Clauses 6 and 8 relate to the common platform, because in those cases, the person would have to have legal representation because they could not enter, for example, an early plea online because it has to be done through the common platform and that has to be done through a practitioner. To be clear, there is a difference.

--- Later in debate ---
James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

To be clear, I am not talking about a day off work. If they go into court, the issue is not having the income—for example, if someone is self-employed. It may be less of an issue for someone who is permanently employed; it depends on their contract. I think it is important for people to have the option, particularly if they are time poor. I stress that it is a choice.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

What information will be provided in the letters when they are sent out, so that people can make the right choice? If the hypothetical plumber chooses to pay a fine, which may be less than the money that he would lose from missing a day’s work, he may think that he is financially better off because he is not going to court. Assuming that he is innocent, however, how will he get information about the consequences of the record? Will that be provided in the letters?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

The answer is very simple. If the person concerned is innocent and pleads not guilty, the case is heard in court. This procedure is for people who are guilty and wish to plead guilty online to save themselves the hassle of going to court, given that they are guilty.

Judicial Review and Courts Bill (Seventh sitting) Debate

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Judicial Review and Courts Bill (Seventh sitting)

Caroline Johnson Excerpts
Committee stage
Tuesday 16th November 2021

(2 years, 6 months ago)

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James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

We come to a particularly important clause in the context of court recovery.

Clause 11 will help create a more flexible and unified court system by providing the Crown court with increased flexibility to return certain cases to the magistrates court. Currently, the Crown court can return cases to the magistrates court in a very limited set of circumstances. The clause will provide the Crown court with a new general power to return cases to the magistrates court, including to the youth court, for trial and sentencing, when the judge is satisfied that magistrates have the necessary jurisdiction.

A defendant’s right to elect for jury trial is unaffected by this measure. Before the Crown court can return a case back to the magistrates court for trial, it must first obtain the defendant’s consent to do so if the defendant is over 18.

Clause 11 also requires the Crown court to provide reasons whenever it decides not to send a child defendant under the age of 18 back to the youth court. The clause recognises that the nature and seriousness of criminal cases can change as they progress through the criminal justice system. It helps to create a more efficient criminal court system by ensuring that cases are always heard in the most appropriate venue.

On the important point of court recovery, we estimate that clause 11 will make room for a further 400 Crown court sitting days. Those days will be saved on the following assumptions: that 5% of not guilty triable either-way cases would be sent back for trial and 10% of guilty triable either-way cases would be sent back for sentencing. The 5% and 10% figures are of eligible cases—in other words, cases that received less than six months at Crown court; that is based on pre-covid 2019 data. I remind colleagues that 400 days saved in the Crown court are 400 days when we can hear murder cases, rape cases and cases in the backlog. That is why the clause is incredibly important.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - -

I was fortunate enough to witness a case at the Old Bailey last week, and to see how the process operates. There are people waiting quite a long time on remand to have their cases processed. Can my hon. Friend confirm that the terms of the clause will also reduce the amount of time that people spend on remand, waiting for their trial?

James Cartlidge Portrait James Cartlidge
- Hansard - - - Excerpts

My hon. Friend makes an excellent point. We should be cognisant of those on remand—whether in custody or on bail, but particularly those in custody. She makes exactly the right point: by definition, if we free up space in the Crown court through the clause, we are enabling more cases to be heard more quickly.

It is important to stress that those cases would go back to the magistrates court. We can do that because the “backlog” in the magistrates court is now far better; we have seen a huge reduction in the outstanding case volume because it has faster throughput. All of us would pay tribute to our voluntary judiciary. I was pleased yesterday to hold a meeting with MPs invited from all parties who are currently magistrates or have been magistrates. A number of hon. Friends were there and we had a very interesting discussion. I have great faith in the ability of the magistrates courts to take more cases and to assist the Crown court, which has the serious matter of indictable cases.

Without further ado, I should say that this is an important clause, which forms an important and significant part of court recovery.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Powers of youth court to transfer cases if accused turns 18

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

Judicial Review and Courts Bill (Eleventh sitting) Debate

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Judicial Review and Courts Bill (Eleventh sitting)

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Committee stage
Tuesday 23rd November 2021

(2 years, 6 months ago)

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Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

That is enough, apparently—according to the Minister.

Having gone through that process, the Government decided to push forward with focused reforms to Cart judicial reviews to modify the nature of discretionary remedies only. This new clause, and indeed new clause 5 and the other new clauses that were not selected, would go much further. If these proposals were being taken seriously, they would be headline provisions in the Bill, not underdeveloped addendum clauses introduced without proper consideration and in their current form. It is inappropriate to being these measures into force as proposed.

The new clauses are not supported by, and in some cases go directly against, expert analysis or wider consultation. The measures being taken forward by the Government in this Bill were preceded by extensive consultation and engagement with experts and stakeholders. That includes the work of the independent review of administrative law and contributions from across the sector, including the judiciary.

The same cannot be said of these new clauses. In fact, the majority of experts and the Government themselves rejected some of the very measures they propose. For example, the changes to the disclosure duty in new clause 5 were considered but ultimately rejected by the independent review of administrative law. The Government agreed at the time that the reforms were unnecessary.

The new clauses try to address significant, complex areas of law in an overly simplistic way, and many of the apparent problems these new clauses seek to resolve are more complicated than the proposals seem to believe or understand. The rules on evidence disclosure, for example, have developed so that disclosure is tailored in each case to ensure that justice is done, whereas the new clauses take a blunt hammer to this sophisticated scheme. Unfairness is therefore inevitable.

The solutions are blunt and may lead to unintended consequences. Although several of the new clauses have been found to be out of scope, they amount to an attack on our constitutional balance. The result would be a great reduction in judicial protection, the disempowerment of aggrieved citizens and a Government who are unacceptably insulated from scrutiny.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - -

The hon. Gentleman is talking about constitutional balance, as did my right hon. Friend the Member for South Holland and The Deepings. The important question is: who is ultimately in charge of making the laws of the country? Parliament has the right, given by the electorate, to decide the law. The principle of the judgment said that should be limited by the judiciary in some cases, which throws up an important constitutional question that we need to look at.

Andy Slaughter Portrait Andy Slaughter
- Hansard - - - Excerpts

Absolutely. Parliament is supreme and can will what it likes. That is very clear. Where the balance lies is what is in dispute here. The question is the appropriate role of the judiciary, which is exactly how the doctrine of judicial review has developed.

Caroline Johnson Portrait Dr Johnson
- Hansard - -

With respect, that point is not in debate. What Lord Carnwath said is:

“In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.”

What I understand is being said—the hon. Gentleman can correct me if I am wrong—is that in some cases the legislature does not have the right to pass particular laws.

Judicial Review and Courts Bill Debate

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Judicial Review and Courts Bill

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Anne McLaughlin Portrait Anne McLaughlin (Glasgow North East) (SNP)
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I will speak briefly about the parts that apply to Scotland, which are significant and potentially extremely damaging to people’s rights to access justice. Because Scotland is currently compelled to do as we are told as part of this Union—we do not have the normal powers of a normal independent country—even our own democratically elected Government can do nothing about that damage. If that is not an argument for voting yes in the 2023 independence referendum, I do not know what is.

It is also interesting that, on this Bill, as with the Nationality and Borders Bill and the policing Bill, it has been left to the House of Lords—the unelected House—to represent the views of the people and attempt to get rid of the most egregious parts of each horrible piece of legislation. As a big fan of democracy, that does not make me any more inclined to support an unelected Chamber, but I want to pay tribute to those Members who have worked so hard, often into the early hours of the morning, on all of the amendments to try to make an awful Bill a tiny bit more palatable.

Lords amendment 1 removes the power to include provision and quashing orders, removing or limiting their retrospective effect. Those on the Opposition Benches, and in particular those of us who were on the Bill Committee, tried hard to get the Government to understand that if quashing orders are not to be applied retrospectively, there will be a very chilling effect. Many of us talked about the landmark case of Employment Tribunal fees that Unison brought to the Supreme Court in 2017, where the Court found that Parliament was wrong to limit people’s access to justice by charging them to use the Employment Tribunal. It found in favour of the claimants, and the quashing order had immediate effect, so the fees were abolished immediately and the Government were required to refund anyone who had paid them in the past. Given that people were being charged up to £1,200, that was a great outcome that will have made a big difference to many.

However, if the Government get their way and Lords amendment 1 is not agreed to, should something similar happen in the future, anyone who had paid such fees would be unable to claim their money back. Who would put themselves through all that for no tangible outcome? There will be zero incentive to challenge the Government or other public bodies, so those public bodies and the Government will be able to proceed safe in the knowledge that they can do whatever they like. The Scottish National party therefore absolutely supports the very sensible Lords amendments 1, 2 and 3.

At last, the Government have seen sense and agreed to Lords amendment 4. There was something sinister about the Minister wanting the power to tell the judiciary how to do their jobs. Judges have a suite of remedies at their disposal, and they should decide which are the most appropriate, so I am relieved that they finally agreed to that amendment.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
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I wonder whether the hon. Lady is making an argument that contradicts her previous one. On the one hand, she said that she does not want retrospective quashing orders to be available to a judge to make a decision on, and the other hand, she argued that judges should be trusted to make their own decisions. Surely judges can be trusted to make decisions on whether a retrospective quashing order is or is not appropriate in an individual case.

Anne McLaughlin Portrait Anne McLaughlin
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We have had this discussion so many times before. The hon. Member needs to go and look up the meaning of the word “presumption”.

Lords amendment 5 is about Cart judicial review—in Scotland, it is Eba judicial review. The amendment would insert a new clause to enable appeals of an upper tribunal decision to refuse an appeal to the High Court and then to the Supreme Court if considering a point of law or if it is in the public interest. It is a compromise, and surely the Government can accept one further minuscule compromise. After all, as we have pointed out to Government Members on numerous occasions, the Government claim that their measures were motivated by a high number of attempts versus the low rate of success, but the evidence to support their position was so flawed that the Office for Statistics Regulation decided to launch an investigation, which found that the real success rate was at least 15 times higher than the Government were telling us. I do not think that we have had an apology for that obfuscation yet, but these days Government apologies tend to have something of a hollow ring to them. Therefore, instead of apologising, why do they not just accept that their stats were flawed and accept the compromise amendment?

Worse: the Government insist on thinking that a Cart judicial review is successful only if the appellant actually wins. The truth is that a successful Cart judicial review is one where the flawed decision of the upper tribunal is appealed and reversed. That has nothing to do with the final outcome of the case. If we base the figures on that, the stats show just how vital a safeguard Cart judicial reviews are. Using accurate figures, the Public Law Project calculated that 40 people every year would be otherwise incorrectly denied their right to appeal in cases where, as we heard from the shadow Minister, the hon. Member for Hammersmith (Andy Slaughter), the stakes can be incredibly high. We are talking not about trivial cases, but sometimes life-and-death cases. The tribunal system considers access to vital benefits, and removing that layer risks leaving people with disabilities and those facing destitution and homelessness without a last line of defence.

The tribunal system also considers immigration cases, as we heard. If it is so flawless, how am I able to tell the story again of the Venezuelan man who fled to the UK after witnessing the violent murder of his friend by state actors who would most certainly have come after him, had he remained in Venezuela? The first-tier tribunal and the upper tribunal surmised that he had nothing to fear. Thankfully, he had that last line of defence, which the Government are trying to take away and the Lords are trying to save, and he was able to judicially review the decision. The upshot was that the man was allowed to appeal. He won and was saved from deportation and almost certain persecution and death.

Retaining the restricted supervisory jurisdiction, as proposed in Lords amendment 5, would help to avoid injustice. However, voting against the Lords amendment would be a clear demonstration that people such as the man I mentioned, people who are dependent on disability benefits, and people facing homelessness are irrelevant to the Government and to Conservative Members.

Lords amendment 7 is on the online procedure rule committee. We were disappointed that neither House accepted our very reasonable request to include just one representative on the committee with knowledge and experience of the Scottish legal system. When we proposed such amendments during previous stages, I said that accepting them would

“allow the Government to keep up their pretence about respect for Scotland”.—[Official Report, 25 January 2022; Vol. 707, c. 939.]

They have declined to do even that, as has the House of Lords. It is extremely disrespectful to Scotland and our distinct legal system.

The Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of their citizens and, in particular, some of their most vulnerable people. The Bill needs to be seen as part of a whole alongside the independent Human Rights Act review, which is under way, a review of the Constitutional Reform Act 2005, which is on its way, and a succession of relevant pieces of legislation that are currently before Parliament—very currently, in fact; some are being considered this week and even today—such as the Elections Bill, the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill.

Those proposals all have something else in common: they are decisions that should be taken by the countries affected. We should not have one country deciding for other, smaller nations. Why do the people of Scotland have to put up with what Liberty called

“a concerted attempt to shut down potential routes of accountability and exert the power of the executive over Parliament, the courts and the public”

when they have consistently voted for parties opposed to those things? I will tell hon. Members why: because a slim majority of people were frightened into voting against independence in 2014.

The people of Scotland will be far more afraid of all this legislation being imposed on us than any daft scare stories that the coalition of Unionist parties can come up with next time around. We will always show solidarity to people in the rest of the UK who are fighting these terrible wrongs, but next time, in 2023, I am confident that the people of Scotland will vote yes to independence and yes to making far better decisions for ourselves.

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Wera Hobhouse Portrait Wera Hobhouse (Bath) (LD)
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I rise to speak to Lords amendments 1, 2 and 3, all tabled by Lord Marks in the other place. I appreciate that the Government have made some concessions and I thank the Minister for his meeting with me.

Amendments 1, 2 and 3 would remove from the Bill the power to make prospective-only quashing orders. They are backed by the Law Society and Justice, and I urge Members across the House to back them too. Judicial review is one of the most powerful tools that an individual has to enforce their rights. Challenging the Government through the courts when they get things wrong is one of the core principles of our parliamentary democracy.

Caroline Johnson Portrait Dr Caroline Johnson
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Will the hon. Lady give way?

Wera Hobhouse Portrait Wera Hobhouse
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No; I am conscious of time and Madam Deputy Speaker is anxious that we proceed.

The principle should not be party political but one shared across the House. It is disappointing to see the Government pushing ahead with plans to restrict judicial review by opposing the amendments. Unamended, the Bill is described by the Law Society as “chilling”; clauses 1 and 2 undermine judicial review. Prospective-only quashing orders could be hugely harmful to those seeking justice: they would not only deny redress to someone who had been harmed by a public body’s unlawful action, but actively serve as a disincentive to those seeking justice through judicial review.

Let us imagine a person who had incorrectly been deemed ineligible for carer’s allowance by the Department for Work and Pensions. That person successfully challenges the decision through judicial review. Prospective-only quashing orders would mean that the person did not receive the back payments unlawfully denied to them. Those payments could mean the difference between a person heating their house or going cold, or between eating or going hungry.

To make matters worse, extensive delays in courts mean that decisions could be put off for even longer. Prospective-only quashing orders arbitrarily discriminate between those affected by an unlawful measure before a court judgment and those affected after one. There are numerous examples. In 2017, the High Court ruled that a Home Office policy to deport EU rough sleepers was unlawful and discriminatory. The policy was scrapped. If a prospective-only quashing order had applied, then potentially only those receiving a removal notice would be protected; all those who had already faced removal or had had a removal notice issued against them would still have faced deportation. That would not have been justice.

Important as they are, the damaging effects of prospective-only quashing orders go far beyond individual cases. They damage the basic principle that underpins our democracy: that individuals must have the power to challenge the powerful when the powerful get things wrong. If the Government or public bodies are spared the risk of retrospective legal consequences, the motivation for good decision making is lower. Public bodies will take their chances, particularly in issuing welfare benefits, because the cost of getting things wrong would still be lower than getting them right in the first place. That is bad not only for those seeking redress from the courts but for all of us. It should ring alarm bells for all of us.

The Bill is just another Government programme of constitutional reform that weakens the institutions and rights that hold them to account. We saw that in the Police, Crime, Sentencing and Courts Bill, the Nationality and Borders Bill and the Government’s voter ID proposals. We Liberal Democrats will continue to stand against any attempts to weaken the institutions and rights that hold the Government and the powerful to account. I urge Members across the House to do the same and vote in favour of Lords amendments 1, 2 and 3.