Judicial Review and Courts Bill (Eleventh sitting)

Caroline Johnson Excerpts

Committee stage
Tuesday 23rd November 2021 Public Bill Committees

[Andy Slaughter]

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.

[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

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]

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.

[Dr Johnson]

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.