Judicial Review and Courts Bill
Public Bill Committee, 2 November 2021.
(Morning)
Mark Hendrick (Labour/Co-operative, Preston)
Before we begin, I have a few preliminary announcements. First, if Members wish to remove their jackets, they should feel free to do so, because this room is quite warm. I encourage Members to wear masks when they are not speaking. This is in line with guidance of the House of Commons Commission. Please also give each other and members of staff space when seated and when entering and leaving the room.
Members should send their speaking notes by email to hansardnotes@parliament.uk. Similarly, officials in the Gallery should communicate electronically with Ministers. Please switch any electronic devices to silent. As many of you will be aware, tea and coffee are not allowed during sittings, but water is provided at most desks.
Today we will consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before we commence the oral evidence session. In view of the time available, I hope we can take these matters formally.
Mark Hendrick (Labour/Co-operative, Preston)
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email.
Examination of Witnesses
Mark Hendrick (Labour/Co-operative, Preston)
Before we hear from the witnesses, please may I have any declarations of interest in connection with the Bill?
Andrew Slaughter (Labour, Hammersmith)
I am a non-practising barrister.
Mark Hendrick (Labour/Co-operative, Preston)
We will now hear from the first panel. We have three witnesses, all are appearing virtually. I thank you all for attending today’s evidence session. We will hear from Sir Stephen Laws QC, senior research fellow at the Policy Exchange and former First Parliamentary Counsel; Professor Jason Varuhas, from the University of Melbourne; and Professor Richard Ekins, from the University of Oxford.
Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters in the scope of the Bill. We must stick to the timings in the programme motion that the Committee has agreed. We have until 10.25 am for this session, which gives us just under an hour. Could the witnesses please introduce themselves?
Mark Hendrick (Labour/Co-operative, Preston)
Thank you. Could I invite the first question? John?
John Hayes (Conservative, South Holland and The Deepings)
I am not particularly choosy about who answers this—indeed, you might all want to, but I am thinking particularly of Professor Ekins. The independent review of administrative law drew attention to other areas that the Bill might address—I am thinking of where abstract principles have been used to counter decisions of Parliament. The sovereignty and the will of Parliament are critical, and the abstract principles—I am referring to the Prorogation case, for example—should surely be addressed by the Bill. Linked to that is the Adams case, with which you will be familiar and which you will be familiar and which the Attorney General spoke about in a powerful speech a week or so ago, which challenges the Carltona principle. Is it not important that the Bill reinforces that principle, which would be good news for anybody who has been a Minister, is a Minister or, indeed, is on the Opposition side of the House and hopes to be oneQ ?
Mark Hendrick (Labour/Co-operative, Preston)
Your sound has gone, Sir Stephen.
Mark Hendrick (Labour/Co-operative, Preston)
Yes, you can come in while Sir Stephen gets his sound back.
Mark Hendrick (Labour/Co-operative, Preston)
Sir Stephen, do you want to come back in, because you were cut short by the sound? [Interruption.] We are still having sound issues, so we will try to come back to you later. I do not know whether it is a technical issue at your end or this end. Sorry about that, Sir Stephen. In the meantime, I will take a question from Andy Slaughter.
Andrew Slaughter (Labour, Hammersmith)
Q Good morning, gentlemen. I think this is supposed to be a more general session on judicial review, although we also have one eye on what is in the Bill. Lord Faulks, the chair of the independent review, said in this report that,
“overall, the way that judicial review worked was satisfactory”
and that
“any decision to do something about it radically would…be wrong and potentially contrary to the rule of law.”
From some of the answers you have already given, it sounds as though you may not entirely agree with that. Where do you differ from Lord Faulks, if at all? On the contrary view, how do you think judicial review can help to improve decision making by public bodies?
Mark Hendrick (Labour/Co-operative, Preston)
Can I ask who that is directed to first, Andy?
Andrew Slaughter (Labour, Hammersmith)
Any of the witnesses.
Mark Hendrick (Labour/Co-operative, Preston)
Who wants to take that question?
Andrew Slaughter (Labour, Hammersmith)
Q Can I follow up on that before the other witnesses come in? Are you saying that, if any amendment is needed, the correct response would be a sort of tit-for-tat response—that is, responding to individual judgments rather than something more systemic? You said that
“the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments.”
Some of the things that the Lord Chancellor has said in the context of human rights have implied the same thing—that, effectively, there will be a second-guessing or a corrective effect on judgments of the superior courts. Is that how you see this working?
Andrew Slaughter (Labour, Hammersmith)
Q I have seen the paper you have written on that. It does appear to imply a sort of ping-pong effect, where you see what the courts do one day and we here do it another day. Obviously, it would be easier if the Government were able to do that by statutory instrument, but it seems like quite a radical departure from the way that we do things normally.
Andrew Slaughter (Labour, Hammersmith)
Q Yes, that is the point. We have all been involved in emergency legislation from time to time. It is relatively rare, and it is something of an occasion, so in that sense it marks things out. The danger would be if that were to become routine and there was effectively an office of Government that is there to be corrective of the courts when Governments get it wrong.
Mark Hendrick (Labour/Co-operative, Preston)
Does any other panel member want to come in to respond to Andy Slaughter’s question? Sir Stephen, have we got you back yet?
Andrew Slaughter (Labour, Hammersmith)
Q You are talking on a fairly high level here—I think Professor Ekins mentioned “heart of the constitution” cases, which are obviously very sexy to talk about—whereas most of the submissions we have had are from non-governmental organisations, environmental groups or people dealing with special educational needs, who are concerned that some of the provisions in the Bill may limit the opportunity because either a suspended or a prospective-only order will mean that, for some reason or other, they are unable to get their case before the court. Are you sympathetic to that at all?
Andrew Slaughter (Labour, Hammersmith)
Q I have just one more question on clause 2, although not on Cart per se. You will be aware, because it has been quoted quite widely, that the press release that accompanied the introduction of the Bill stated that
“it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
That appears to signal an intent on the Government’s part to use the ouster more commonly in future. Is that how you read it? Do you think that that is a good or bad way of going about things?
Mark Hendrick (Labour/Co-operative, Preston)
Who wants to take that one first?
Mark Hendrick (Labour/Co-operative, Preston)
A few Members have indicated they wish to ask questions, so I will take them in order.
Tom Hunt (Conservative, Ipswich)
There has been lots of debate about whether these reforms are necessary or good for parliamentary democracy. It is important to reflect on the fact that of course it was in the Government’s manifesto that they would propose significant reform to the way in which judicial review works. To what extent do the witnesses see the mandate of an election as important to the functioning of our democracy?Q
Mark Hendrick (Labour/Co-operative, Preston)
Who wants to take that one? Is it a googly?
Mark Hendrick (Labour/Co-operative, Preston)
Thank you. Are you happy with that, Tom?
Tom Hunt (Conservative, Ipswich)
indicated assent.
Mark Hendrick (Labour/Co-operative, Preston)
Sir John Hayes.
John Hayes (Conservative, South Holland and The Deepings)
Q I am listening closely to what you have all said. You have described a sort of creeping judicial activism. The case you have made is that the Bill effectively reaffirms the proper role of judicial review against a drift into a whole range of political areas where judicial review is used as a means of perpetuating political debates. I have particular concern with the perpetual use of the idea of rule of law to legitimise that judicial activism. I would be interested in your view on that. A very good example is the Privacy International case, where the extraordinary judgment by Lord Carnwath talked about the essential counterpoints to the power of Parliament to make law. It describes the courts as such. This is an extraordinary and outrageous thing for a judge to say. It is time, to put it bluntly, that we put some of these people back in their box. Is it not?
Mark Hendrick (Labour/Co-operative, Preston)
Who wants to take that question? Anybody?
Mark Hendrick (Labour/Co-operative, Preston)
There seems to be consensus on that. I am conscious of time; Jason, would you like to come in on that quickly?
Mark Hendrick (Labour/Co-operative, Preston)
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 (Conservative, Sleaford and North Hykeham)
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?Q
Mark Hendrick (Labour/Co-operative, Preston)
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.
Mark Hendrick (Labour/Co-operative, Preston)
Quickly, Sir Stephen.
Mark Hendrick (Labour/Co-operative, Preston)
Thank you. To ask the final question, I call the Minister.
James Cartlidge (Conservative, South Suffolk)
Q Thank you, Sir Mark; it is a pleasure to serve under your chairmanship. I thank our three very distinguished guests for their excellent contributions and some very interesting points. I will finish with one point on Cart JR. I think Professor Varuhas made the point about the upper tribunal effectively being a superior court. On Second Reading, my hon. Friend the Member for Newbury (Laura Farris), who has acted on Cart JR cases as a barrister, made this point about consistency: in very few other areas of law do we have what we call three bites of the cherry. Very briefly, does it not seem strange that no one arguing to maintain Cart JR seems to be arguing that all the other areas where there are only two bites of the cherry should now have three? Would that not be the logical conclusion of that position?
Mark Hendrick (Labour/Co-operative, Preston)
I think we have time for only one response, so who should take it?
James Cartlidge (Conservative, South Suffolk)
It probably has to be Professor Varuhas.
Mark Hendrick (Labour/Co-operative, Preston)
Order. I am afraid that brings us to the end of our time. I thank our witnesses on behalf of the Committee for their evidence today.
Mark Hendrick (Labour/Co-operative, Preston)
Q We now move on to panel 2. We have one witness present, Dr Jonathan Morgan, and a virtual witness, Professor David Feldman.
We will hear oral evidence from Professor David Feldman and Dr Jonathan Morgan, both of the University of Cambridge, for just under an hour. Without any further ado, I ask them to make their introductory addresses.
Mark Hendrick (Labour/Co-operative, Preston)
Professor Feldman, may I interrupt before you go any further? We obviously want to use the majority of our time for questions from Members. Although I am happy for you to give a brief presentation, I want to introduce our other witness so that we can open up for questions. If you could bring your opening remarks to a close, I can get Jonathan Morgan to introduce himself. The floor is still yours, but please be conscious of that.
Mark Hendrick (Labour/Co-operative, Preston)
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.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Mark Hendrick (Labour/Co-operative, Preston)
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?
Mark Hendrick (Labour/Co-operative, Preston)
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.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Caroline Johnson (Conservative, Sleaford and North Hykeham)
Q Just to be clear, it is the equivalent of the High Court but it is not treated as such.
Andrew Slaughter (Labour, Hammersmith)
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.
Andrew Slaughter (Labour, Hammersmith)
Q You are saying there are two separate issues: whether it is a sensible proviso, and whether there is certainty at the moment.
Andrew Slaughter (Labour, Hammersmith)
But a court might attempt to impose—
Mark Hendrick (Labour/Co-operative, Preston)
Q I see Professor Feldman nodding his head. Do you want to comment on that point?
Andrew Slaughter (Labour, Hammersmith)
Q Clause 1 gives the courts a discretionary power to grant a full remedy to a claimant, but to limit the retrospective effects of the judgment for any other individual who has not issued a claim before the date of judgment. Is that right? If so, are you concerned that it could lead to unjust outcomes for those already impacted by unlawful decisions?
Mark Hendrick (Labour/Co-operative, Preston)
Have you finished, Professor Feldman?
Mark Hendrick (Labour/Co-operative, Preston)
Dr Morgan.
Andrew Slaughter (Labour, Hammersmith)
Q Do I take that to mean that the way the proposed new section is drafted could dissuade individuals from initiating judicial review proceedings, because they may not obtain a remedy?
Andrew Slaughter (Labour, Hammersmith)
Q I do have one other question on ouster but, Dr Morgan, just before we leave clause 1, you mentioned a presumption. Do I take it from what you have said already that you are concerned about that provision in clause 1? Is that because of the way that it is drafted, or because of the inclusion of a presumption per se, in this context?
Andrew Slaughter (Labour, Hammersmith)
Professor Feldman, do you agree with that?
Andrew Slaughter (Labour, Hammersmith)
Q Finally, I will ask the same question that I asked the previous panel about ouster, and the Government’s comment in a press release that the
“text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”
Do you think that is a sensible way to go about legislating?
Andrew Slaughter (Labour, Hammersmith)
For either, or both.
Mark Hendrick (Labour/Co-operative, Preston)
Very quickly, because four more people want to ask questions. We are running on time.
John Hayes (Conservative, South Holland and The Deepings)
Q So you are clear that the law needs to be altered, because of what you said about the 2007 circumstance. There is a good argument for greater clarity and certainty around this area of work. Furthermore, there is an argument for going further. For the reason that you just gave, there is an argument for taking a more comprehensive view of how judicial review should be reformed. I am particularly mindful of the points that were made in the earlier evidence session about judicial activism and the challenge that it represents to Lord Bingham’s affirmation. You will remember the Jackson v. Attorney General case about the Crown in Parliament and its supremacy. The need for legislation is clear. The Bill is good in parts but, if anything, the Government need to go further.
John Hayes (Conservative, South Holland and The Deepings)
Q So in that sense, the Bill is welcome. I take your interesting point about compensation and how clause 1 might be amended as a way to deal with some the challenges associated with the Bill, but essentially the Bill is needed and, inasmuch as it aims to do what you describe, is welcome.
On the issue of judicial activism, is this the right Bill to explore that, or are you suggesting, as you implied just a moment ago, that perhaps another piece of legislation will be introduced to deal with that in the light of the Evans case, the Miller case and the other cases that we have seen prevailing over a number of years? There is a challenge for democratic Government that needs to be addressed.
John Hayes (Conservative, South Holland and The Deepings)
I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
Mark Hendrick (Labour/Co-operative, Preston)
Professor Feldman, do you want to come in on that?
John Hayes (Conservative, South Holland and The Deepings)
Q I simply recommend that you read the Attorney General’s speech on this, delivered in Cambridge about a week ago, which sets out exactly why this matters and defines judicial activism pretty well. I make no more comment, but refer you to that.
Janet Daby (Labour, Lewisham East)
Returning to quashing orders, the Bill proposes the introduction of suspended quashing orders. They would allow the courts to give public bodies a certain amount of time to correct an unlawful act, instead of immediately striking it down. Could this have any negative implications for claimants in judicial review proceedingsQ ?
Mark Hendrick (Labour/Co-operative, Preston)
Q Professor Feldman, do you want to comment on that?
Mark Hendrick (Labour/Co-operative, Preston)
Are you happy with that, Janet?
Janet Daby (Labour, Lewisham East)
Yes, that is fine.
Marco Longhi (Conservative, Dudley North)
I am glad you mentioned immigration and asylum a few moments ago, because back in 2004 the Labour Government tried to remove judicial review by using a very broadly worded ouster clause. Does this not suggest that removing Cart JR, with a tightly worded ouster clause, is in fact just a moderate and proportionate stepQ ?
Marco Longhi (Conservative, Dudley North)
Thank you. I am glad that you referred to the words “less extreme” in your commentary.
James Cartlidge (Conservative, South Suffolk)
Q I was very struck by the point from Professor Feldman about resource and proportionality in relation to the Cart judicial reviews. He made the point about the 3.4% success rate being very low compared with estimates of success. I am not sure that that is necessarily definitive. You suggested 50% for what we might call other JRs. The average number of judge days used on these cases is something like 180 days of what is, after all, the High Court judge’s time, so your point on proportionality is important in terms of resource—albeit the legal considerations are very important as well. Currently, we as a Government, who are accountable for resources, are faced with this covid-related backlog, particularly in the Crown court but in other parts of the courts as well. Given the average number of judge days, would you agree that currently the resource issue is even more important to take into account?
James Cartlidge (Conservative, South Suffolk)
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.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Mark Hendrick (Labour/Co-operative, Preston)
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.
Mark Hendrick (Labour/Co-operative, Preston)
Q35 I remind Members that this session is being broadcast. We will now hear oral evidence from André Rebello OBE, senior coroner for Liverpool and Wirral and honorary secretary of the Coroners’ Society of England and Wales, and from Richard Leiper QC. We have until 2.45 pm for this session. I welcome the witnesses. Would they like to introduce themselves, starting with Richard?
Andrew Slaughter (Labour, Hammersmith)
I have one or two quick questions on coroners. Some people have commented that the provisions in the Bill are fairly modest, particularly in light of the recent Justice Committee report, which was debated last week and which suggested that progress could have been made in quite a number of other areas. Probably the suggestion that received most attention concerned legal aid, specifically in relation to bereaved families at inquests where state parties are represented. Those are seen to involve an inequality of arms. Is that something that you have experienced, and do you think that there is merit in that suggestion?Q
Andrew Slaughter (Labour, Hammersmith)
Q May I press you on that? It sounds to me that your answer is that legal aid for bereaved families in such inquests may not be necessary, even if it was desirable. However, these are often complex matters and, although I am sure that legal counsel will do its best to assist the coroner’s court, they also have their clients’ interests to look after. Whose job is it—is it your job as a coroner?—to help those who have no legal experience and who are in difficult and perhaps emotional situations, as relatives of the deceased, to understand proceedings and to represent their best interests?
Andrew Slaughter (Labour, Hammersmith)
Q Except that in some cases there will be pro bono representation, or there may be privately paid representation. Is this a level playing field? I am talking about the minority of cases where there is representation.
Andrew Slaughter (Labour, Hammersmith)
Q Are there any other recommendations of the Select Committee which are not in the Bill at present which you would like to see in the Bill? There were quite a number to do with appeals, oversight, the national service, the inspectorate and complaints—matters of that kind. Was there anything in there that caught your eye?
Andrew Slaughter (Labour, Hammersmith)
Q And you will have seen the Government’s response to that?
Mark Hendrick (Labour/Co-operative, Preston)
Richard, do you wish to respond to this question?
Antony Higginbotham (Conservative, Burnley)
Mr Leiper, these questions are probably for you. One of the things that the Bill does is introduce an online procedure rule committee. I believe you sat on a shadow version of Q such a committee. Can you give us your insight into what kind of efficiencies this might bring and where you think the early focus of that committee should be in its first couple of months after inception?
Antony Higginbotham (Conservative, Burnley)
Q Can I just follow up? I understand what you are saying about treading on toes, but it is not also the case that we must ensure our ways of working evolve as technology evolves. To your point, that is why it is important, as the committee establishes itself, that it does so in a careful and considered way—not to step on toes, but to take the best of new ways of working and carry the profession with it.
Alex Cunningham (Labour, Stockton North)
Mr Leiper, you talked about the size of the committee being inadequate at six members. What is your opinion about how we build that particular committee? Are you suggesting 16 members like other committees or do you think there is a middle ground? Who should the committee comprise?Q
Alex Cunningham (Labour, Stockton North)
Q You said that a tremendous amount of work needs to be done, but that you accept that this is a good idea generally. What safeguards do you think we will need to put in place in the short term to ensure that justice is not adversely impacted as this is developed?
Alex Cunningham (Labour, Stockton North)
Q Thank you. I have one final question. What do you think about the powers provided to the Lord Chancellor by the OPR provisions in the Bill, in clauses 19 to 26? Do they cause a democratic deficit?
Alex Cunningham (Labour, Stockton North)
That is very helpful, thank you.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?Q
Caroline Johnson (Conservative, Sleaford and North Hykeham)
Q Do you think there are enough safeguards to be sure that people are able to participate, and alternatives if they are not?
Caroline Johnson (Conservative, Sleaford and North Hykeham)
Q You said that some people cannot participate in remote hearings.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Angela Crawley (Scottish National Party, Lanark and Hamilton East)
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 requiredQ ?
Marco Longhi (Conservative, Dudley North)
I have a question for Mr Rebello. What is your view on coroners having the power to hold inquests without a hearing, particularly in non-contentious casesQ ?
Tom Hunt (Conservative, Ipswich)
We understand that the Chief Coroner will be providing guidance to coroners on the proposed five measures in the Bill. Do you think that that will ensure consistency of practice across coroner areas, given that coroners are independent judicial office holders and that judicial decisions are for them to make?Q
Janet Daby (Labour, Lewisham East)
According to Transform Justice:Q
“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”
It sounds like you may agree, Mr Rebello. To what extent do you think online pleas are compatible with the principles of open justice?
Janet Daby (Labour, Lewisham East)
Okay, I will leave that for session 6.
Mark Hendrick (Labour/Co-operative, Preston)
Three questioners wish to be called a second time. I will call them in the order in which they indicated.
Alex Cunningham (Labour, Stockton North)
Q I suspect Mr Leiper might not be able to help me on criminal procedure reforms, but will he indicate that is the case?
Alex Cunningham (Labour, Stockton North)
Q That is fine. I have a general question. Clause 4 extends the pleading by post scheme to children—in other words, defendants who have attained the age of 16, rather than the usual 18. Do you think that is appropriate?
Alex Cunningham (Labour, Stockton North)
Okay.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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.
Andrew Slaughter (Labour, Hammersmith)
Mr Leiper, am I okay to ask you about employment tribunals?
Andrew Slaughter (Labour, Hammersmith)
Q Our notes say that I can, so I will have a try. Do you welcome the provisions in clauses 32 to 36? Do you see any problems with them, or are they mainly administrative?
Andrew Slaughter (Labour, Hammersmith)
Q It looks like it moves responsibility from the Department for Business, Energy and Industrial Strategy to the Ministry of Justice, making adjustments to the procedural rules so that they are equal between the different types of tribunals, and changes the membership, like you say. Is that your reading of it?
Andrew Slaughter (Labour, Hammersmith)
Q I guess it is because they were industrial tribunals to begin with, so they were in the industry Department. We have discussed coroners, but could we take this opportunity to put in the Bill anything relating to employment tribunals? I am thinking in particular of the backlog at the moment, which is pretty heavy. Could any measures be introduced to address that?
Andrew Slaughter (Labour, Hammersmith)
Q There was a reduction in resources because of the Unison case, which has now been reversed. Is that also causing problems?
Mark Hendrick (Labour/Co-operative, Preston)
I thank both our witnesses for being present today and giving evidence, which I am sure the Committee has found very useful indeed. We will now move on to the next panel of witnesses.
Mark Hendrick (Labour/Co-operative, Preston)
We are now going to hear evidence from Sara Lomri, deputy legal director at the Public Law Project; from Ellie Cumbo, who is head of public law at the Law Society; and from Louise Whitfield, who is head of casework at Liberty. We have until 3.30 pm for this panel, and we will try to make sure that the questions are fairly sharp. If the answers can be equally sharp, we will get more questions in and I am sure it will be much more fruitful. I can see two of the three witnesses on screen, and the third witness is present in person. First of all, can each of you briefly introduce yourself, and then we will open it up to questions?
Andrew Slaughter (Labour, Hammersmith)
Q This question is to any of the witnesses. Do you think the changes to judicial review that are included in the Bill are justified?
Andrew Slaughter (Labour, Hammersmith)
Q I am happy either way. Rather than assertions, however, I think we are looking for some factual basis for why you say this is wrong. We heard some evidence this morning that perhaps suggests there is a political motivation, or at least that judges are being drawn into politics in this way. Is that how you read it, and do you see these provisions addressing that problem?
Andrew Slaughter (Labour, Hammersmith)
Q Thank you very much. Turning to clause 2 for a minute, I would like to clear up one point with Sara from PLP. We have heard about the success rate of Cart reviews, which was corrected from 0.22% to, I think, about 3%. Public Law Project puts it higher than that—perhaps as high as 6%. Could you shed any more light on what the difference is?
Andrew Slaughter (Labour, Hammersmith)
Q More generally—this is for any of the witnesses—in relation to Cart, you have seen the reference from the Government’s statement that it is expected the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation. We discussed that part this morning; This might form the basis of oustering other cases. What is your response to that?
Andrew Slaughter (Labour, Hammersmith)
Q Thank you. I have one more question—I do not want to monopolise the time. You have already said something about prospective-only quashing orders. If you want to saying anything more about how that might prevent somebody from obtaining an effective remedy, please do. I would specifically like your comments on suspended quashing orders and whether you see any merit or demerit in introducing them as proposed in the Bill.
Andrew Slaughter (Labour, Hammersmith)
Q What do the other witnesses think about that?
Andrew Slaughter (Labour, Hammersmith)
Q Just to be clear for Liberty and PLP, are you welcoming the provisions in the Bill on suspended quashing orders, or do you think they are not necessary or could they be dealt with by the judiciary itself evolving those powers?
Andrew Slaughter (Labour, Hammersmith)
Thank you very much.
John Hayes (Conservative, South Holland and The Deepings)
I do not know whether any of the witnesses are familiar with the recent comments of the Attorney General on these matters, which seem to contradict some of their evidence. She said that, in the last decade or so, there has beenQ
“an increased appetite for political litigation, and, more worryingly, an appetite for putting judges in an invidious position, by asking them to decide essentially political matters on applications for judicial review.”
That also reflects the view of Lord Sumption who, the witnesses will be aware, has commented:
“Allowing judges to circumvent parliamentary legislation, or review the merits of policy decisions for which Ministers are answerable to Parliament … confers vast discretionary powers on a body of people who are not constitutionally accountable for what they do.”
He added that
“if we keep asking judges to answer inherently political questions, we are ignoring the single most important decision maker in our system: the British people.”
There is clearly a problem. We have heard that from other witnesses this morning. The problem needs to be solved. I have some sympathy with the view that the Bill does not go far enough and that we could do more. However, the idea that we should do nothing seems to me to ignore the facts.
John Hayes (Conservative, South Holland and The Deepings)
Q But you do accept that judicial review should not be a means for perpetuating political debate, that it should be entirely separate from any consideration of policy, where Ministers are held accountable for that policy and it has been made in a proper way.
John Hayes (Conservative, South Holland and The Deepings)
I will give you some evidence in a second, but others may want to comment first.
John Hayes (Conservative, South Holland and The Deepings)
Q Forgive me for saying so, but I am asking questions, not commenting. I agree that there is an argument both for increasing the scope of the Bill and for dealing with some of the issues of process identified in the independent review of administrative law. I agree that the Bill could be tightened and improved, but that is true of all legislation.
To give an example, I understand that a character called Jolyon Maugham—I am inclined to say, wearing my inverted snobbery on my sleeve, that there were not many Jolyons on the council estate that I grew up in—is going to take to judicial review the appointment of the new chair of the Charity Commission, at least according to reports. That is despite the fact that in parliamentary answers it has been made clear that that appointment has been an open and fair competition in line with the Cabinet Office’s governance code on public appointments, as regulated by the Commissioner for Public Appointments. Even where the process has been entirely fair and reasonable, the judicial review is being used as a way of asserting—one might go as far as to say campaigning—for political ends.
Mark Hendrick (Labour/Co-operative, Preston)
Sara or Louise, do you want to join in?
Mark Hendrick (Labour/Co-operative, Preston)
Louise, do you want to add anything?
Angela Crawley (Scottish National Party, Lanark and Hamilton East)
Q Thank you for that, Sara. We have heard much this morning about how most of the judicial review cases are subject to immigration decisions, and that those are particularly privileged in terms of judicial oversight compared with other matters of jurisdiction. Do you think that that is a fair assessment? Can you indicate for the benefit of everyone here the other instances where judicial review is used as a remedy of last resort? I will start with the Public Law Project.
Angela Crawley (Scottish National Party, Lanark and Hamilton East)
Q Thank you for that, Sara. I am conscious that Louise and Ellie might want to come in on that, but I will just ask a supplementary question specifically on the responsibility of Governments. Successive Governments have all had differences of opinion on policy, but it is not the responsibility of any Executive to ensure that their Government is held to account for their decisions. The Bill may limit future Governments and bind them by the same principle. Do you feel that is a fair point?
Angela Crawley (Scottish National Party, Lanark and Hamilton East)
Thank you.
Tom Hunt (Conservative, Ipswich)
Q This is to Sara. In principle, do you agree that the Government have a duty to ensure that precious and limited judicial resources are directed as effectively and efficiently as possible?
Tom Hunt (Conservative, Ipswich)
Q But with such scarce resources and pressure, and such a low success rate in the cases that do get JR, how could that be seen as an efficient and effective use of precious resources?
Tom Hunt (Conservative, Ipswich)
Q But you accept that the vast bulk—well over 90%—of that £350,000 of scarce resources is spent on cases that are going to be unsuccessful.
Tom Hunt (Conservative, Ipswich)
Thank you.
Tom Hunt (Conservative, Ipswich)
Q My understanding is that the 5.7% figure is heavily contested. In fact, I have seen figures of under 1%.
Mark Hendrick (Labour/Co-operative, Preston)
Is that the end of the answers?
Andrew Slaughter (Labour, Hammersmith)
Q I would just like to clarify some points that came up this morning about this issue. It has been said several times that with Cart reviews, there is an extra bite of the cherry—an additional step to challenge, which is not there in other types of case. Is that right in your view, and is it justified? It is also said that, because the upper tribunal has equivalent status to the High Court, it is inappropriate perhaps for the High Court to review those decisions. What is your view of those points?
Mark Hendrick (Labour/Co-operative, Preston)
I am conscious of the time, and we have three more questions to come. Paula Barker.
Paula Barker (Labour, Liverpool, Wavertree)
ThankQ you, Chair. I want to concentrate on clauses 18 to 31, which deal with the online procedure rules committee, and I will put this question to Sara first, if I may. I would be interested to understand which types of proceedings you believe should be subject to online procedure rules.
Paula Barker (Labour, Liverpool, Wavertree)
Q Thank you. That is really helpful. Louise, did you wish to add anything?
Paula Barker (Labour, Liverpool, Wavertree)
Q Thank you. I believe this next question is actually for Sara. What impact will the measures in clauses 18 to 31 have on practical access to justice?
Paula Barker (Labour, Liverpool, Wavertree)
Q I will be putting the same questions to Justice in the next session. Do you think there are any potential safeguards that the Government could introduce to ensure that access to justice is not adversely impacted?
Paula Barker (Labour, Liverpool, Wavertree)
Q What about the powers provided to the Lord Chancellor by the OPR provisions in the Bill, specifically looking at clauses 19 to 26? Do you believe that they cause a democratic deficit?
Mark Hendrick (Labour/Co-operative, Preston)
Paula, I am conscious of the time.
Paula Barker (Labour, Liverpool, Wavertree)
That is fine. Thank you, Chair.
Mark Hendrick (Labour/Co-operative, Preston)
I think the Minister wants to come in briefly now. I will then move to Liz Twist, and then to Caroline.
James Cartlidge (Conservative, South Suffolk)
Q Going back to Cart JR, and this point on privilege; I would not personally use the word privilege, but we can surely accept that there are many areas of law in this country that do not have what we are calling three bites at the cherry. Therefore, seeing as the panel have given very passionate arguments, particularly the Public Law Project, as to why we should retain Cart JR, is it your view that in those areas of law that do not have three bites of the cherry in the same way, that they should also get that? Or do you think this should be an exception in these cases, which are primarily—95% of them—immigration cases?
Mark Hendrick (Labour/Co-operative, Preston)
Could Members please indicate who they want to direct the question to.
James Cartlidge (Conservative, South Suffolk)
I said the Public Law Project.
James Cartlidge (Conservative, South Suffolk)
Q The Public Law Project is not just about immigration, as I understand it. Correct me if I am wrong, but that was the impression I got when I met your representatives at the legal aid meeting. Whether you like the phrase three bites of the cherry or not—I think it sums it up very well—my question is whether that right should apply in other areas of the law in this country that do not have it.
Liz Twist (Labour, Blaydon)
I have a question for Ms Cumbo and the Law Society, about the abolition of local justice areas. I wonder what impact you think the abolition will have on the criminal justice system in England and Wales?Q
Liz Twist (Labour, Blaydon)
Q Talking of local stakeholders, do you think that the proposals might have an adverse impact on the independence of the magistracy?
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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.
Caroline Johnson (Conservative, Sleaford and North Hykeham)
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?
Caroline Johnson (Conservative, Sleaford and North Hykeham)
But does it affect the abolition of the Cart reviews?
Mark Hendrick (Labour/Co-operative, Preston)
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.
Mark Hendrick (Labour/Co-operative, Preston)
Welcome to the new witnesses. It is good to see all three of you physically present. We will have none of the technical difficulties that we had earlier, although it is important that people attend, whether virtually or in person. Could you please introduce yourselves before we begin the questions?
Mark Hendrick (Labour/Co-operative, Preston)
Your sound is very low indeed. Could you move a bit closer to the microphone?
Mark Hendrick (Labour/Co-operative, Preston)
Thank you.
Alex Cunningham (Labour, Stockton North)
Q I have a question for Stephanie. Does the Bill contain sufficient safeguards to ensure that online pleas are entered only if the defendant has legal advice. If not, what safeguards do you think might be put in place?
Alex Cunningham (Labour, Stockton North)
Q Do those concerns you have about children extend to clause 4, where we talk about the defendant who
“has attained the age of 16”
rather than the usual age of 18? Could that be covered?
Alex Cunningham (Labour, Stockton North)
Q Apart from the inconsistency, what is your concern?
Alex Cunningham (Labour, Stockton North)
Q That is helpful; thank you. Do you have any concerns about clause 9, which gives the court powers to proceed if the accused is absent from an allocation hearing?
Alex Cunningham (Labour, Stockton North)
Q Can I ask you about something else, then? Do you anticipate that the automatic online conviction as the standard statutory penalty will have an impact on disproportionality in the criminal justice system?
Alex Cunningham (Labour, Stockton North)
Q That is helpful as well. Some people in the sector have expressed concern that there are insufficient safeguards built into the Bill for all manner of things, but an awful lot around how people understand what their options are. For example, if you look at the expansion of the written procedure for allocation proceedings in clause 6(4), do you think it provides sufficient information for the accused to understand what is happening and how to effectively engage in that process?
Alex Cunningham (Labour, Stockton North)
You have anticipated the rest of my questions. I do not know if either of your colleagues wish to comment. No.
John Hayes (Conservative, South Holland and The Deepings)
Q I want to turn to the issue of proportionality. Witnesses may be aware of the recent judgment that says that
“challenges to legislation on the grounds of discrimination are becoming increasingly common in the UK, usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.”
They are assisted in that, are they not, by the principle of proportionality, which confers on courts a broad discretionary power that risks undue interference of the courts in the sphere of political choices. That is very bad, is it not, both for a democratic society and for the role and reputation of courts, because the separation of powers—well, I do not need to lecture witnesses on the separation of powers. They know what it means. We have a problem that needs to be solved by legislative means. The Bill is a welcome start in that respect, is it not?
Mark Hendrick (Labour/Co-operative, Preston)
Who is the question directed at?
John Hayes (Conservative, South Holland and The Deepings)
I am happy for any or all to take it.
John Hayes (Conservative, South Holland and The Deepings)
Q To be clear, I was reading out a recent judgment from a court.
John Hayes (Conservative, South Holland and The Deepings)
I was reading out a court judgment, so there are a number of distinguished judges who share the view I articulated, as you know, that proportionality has become a problem and the Supreme Court has interfered in matters of high politics. That is the argument that has been made by the Attorney General, Lord Sumption and others. That is not my view; it is the view of those who want to see the courts doing what they traditionally did. It is a long-established and time-honoured principle that courts do not become involved in matters of high politics and the argument I am making—or reflecting—is that that is now a problem. We saw it in the Miller case and there is no guarantee that the Supreme Court would not act as it did in the Miller case again. We need to do more to clarify and make certain the respective roles of those who are chosen by the people and who are accountable to them, and those who are not.
John Hayes (Conservative, South Holland and The Deepings)
Q Since we are having this helpful exchange, the change has been the Supreme Court entertaining the idea of proportionality as a general ground for judicial review. That has altered over time. You could argue, as you seem to do, that that is perfectly acceptable and agreeable, but my case is that it is not what judicial review has been about or is supposed to be about.
A good argument for a process of judicial review is that the grounds on which it is exercised have altered. As you know, the Attorney General has made clear her concerns about this, as have a number of senior lawyers, former Supreme Court judges and others. The argument I am making is by no means an unusual or untested one. You will have heard it many times before. I am simply saying are not the Government right at least to address those concerns?
John Hayes (Conservative, South Holland and The Deepings)
Q And that is the end of the matter from your point of view? You think it is perfectly reasonable to continue down this road, even though it is very different from the time-honoured principles that I have briefly articulated.
John Hayes (Conservative, South Holland and The Deepings)
Q Because the Supreme Court is taking a more permissive view around proportionality of the grounds for judicial review.
John Hayes (Conservative, South Holland and The Deepings)
Q As a generality, the Supreme Court is doing that.
John Hayes (Conservative, South Holland and The Deepings)
Q We will have to agree to differ on that subject. You presumably would agree that there is an argument that the scope of the Bill might be widened. We heard earlier evidence that suggests that there is a case for a more widely drawn review of judicial review, for all kinds of reasons that I will not tire you with, because you can check the evidence we received earlier. If we are going to have a change in judicial review, presumably this is an opportunity to do so comprehensively.
Mark Hendrick (Labour/Co-operative, Preston)
Sir John, my interpretation of what you are saying is that you want to widen the scope of the Bill. The scope of the Bill is already set, so with the indulgence of the Committee, I move to the next questioner, Andy Slaughter.
Andrew Slaughter (Labour, Hammersmith)
Q I have a couple of questions for Louise Finer, first on the clauses on coroners. What is your view of those, particularly clauses 37 to 39, on discontinuance of investigation, on non-contentious inquests in writing, and on increased use of remote procedures for coroners’ courts? Do you see any advantages or disadvantages in those?
Andrew Slaughter (Labour, Hammersmith)
Q One other question. It appears that you heard Mr Rebello’s evidence, and you will know that I asked about some of the other recommendations of the Justice Committee, in particular about non-means-tested legal aid for bereaved families in cases where there are state actors represented. To paraphrase his reply, given the inquisitorial nature of coronial proceedings and given that the state parties would often act in the interests of the court, and perhaps even to assist the bereaved persons, as well as their own clients, I do not think he necessarily thought it was inappropriate, but that he certainly did not seem to warm to it. What is your view of that?
Mark Hendrick (Labour/Co-operative, Preston)
Andy, can I say that we have several more questioners, so I ask for shorter questions and, with respect to the panel, shorter answers.
Andrew Slaughter (Labour, Hammersmith)
Q I will ask one more very quick question. Is there anything else in the Justice Committee report that you would like to see incorporated in the Bill? Perhaps list it rather than explain it.
Andrew Slaughter (Labour, Hammersmith)
Chair, I was going to ask about judicial review, but I understand I will have time at the end.
Mark Hendrick (Labour/Co-operative, Preston)
If we have time at the end. We have got three more questions that one or more of the panel may wish to answer. I call Tom Hunt.
Tom Hunt (Conservative, Ipswich)
Q This is for Steve. I have a certain understanding of the word “tyranny” and what it means. I can think of many regimes in the world that are tyrannies, sadly. There are too many where great harm is done to people’s lives. In this country we have by and large a sound legal system that works effectively. I understand there is a debate here about whether a lower and upper tribunal is enough and whether it is appropriate for Cart JR to have a third bite of the cherry. The debate is ongoing. Do you regret that on 26 October you used the word “tyranny” and said the Government were promoting it in this Bill? Is it unhelpful or does it help the debate?
Mark Hendrick (Labour/Co-operative, Preston)
Steve, I really should have pushed Tom on this because it falls outside the scope of the Bill.
Tom Hunt (Conservative, Ipswich)
The comment made was in relation to this Bill, so I do not know where the Nationality and Borders Bill has come from.
Mark Hendrick (Labour/Co-operative, Preston)
I think the witness tried to justify it in an explanation relating to a different piece of legislation.
Tom Hunt (Conservative, Ipswich)
It was a comment made by the panellist in relation to the Bill we are discussing today.
Mark Hendrick (Labour/Co-operative, Preston)
Okay, we will continue.
Tom Hunt (Conservative, Ipswich)
Of course, the definition of tyranny is cruel and oppressive government—
Mark Hendrick (Labour/Co-operative, Preston)
Sorry, Steve, you were answering.
Mark Hendrick (Labour/Co-operative, Preston)
Sorry; we are not taking questions unless they have been indicated. Tom has indicated that he has finished his questions. I call Paula Barker.
Paula Barker (Labour, Liverpool, Wavertree)
Q My question is for Ms Needleman. You may have heard Ms Lomri suggest that you would be best placed to answer this question on clauses 19 to 26—[Interruption.]
Mark Hendrick (Labour/Co-operative, Preston)
Order. We are not having a separate meeting on the side.
Paula Barker (Labour, Liverpool, Wavertree)
Thank you, Chair. Ms Needleman, what are your views on the powers provided to the Lord Chancellor by the OPR provisions, and do you believe that they cause a democratic deficit?
Liz Twist (Labour, Blaydon)
Q Ms Needleman, do you have any concerns about the type of online convictions that might be used in future?
Liz Twist (Labour, Blaydon)
You have answered my follow-up as well. Thank you.
Mark Hendrick (Labour/Co-operative, Preston)
Andy, we have a bit of time left. Would you like to come back to your earlier point?
Andrew Slaughter (Labour, Hammersmith)
Q Yes, Chair, just for completeness. This panel probably expected to deal primarily with part 1 of the Bill, so this question is for any of the witnesses, but I am guessing that it will be for Steve or Stephanie in particular. Do you think that any of the changes to judicial review in the Bill are justified? If not, can you say why you think that they are leading us into in error, or are unnecessary?
Mark Hendrick (Labour/Co-operative, Preston)
The Minister has indicated that he would like to ask a quick question. Steve, could you answer quickly so I can try to squeeze him in?
Mark Hendrick (Labour/Co-operative, Preston)
I am afraid that brings us to the end of the time allotted for the Committee to ask questions of this panel. I thank the panel for making the time and effort to appear before us physically, which was much appreciated. Apologies to the Minister on the final question.
Mark Hendrick (Labour/Co-operative, Preston)
We have a fully virtual panel of three members this time. May I ask each panel member, starting with Dr Joe Tomlinson, followed by Aidan O’Neill and Michael P Clancy, to introduce themselves?
Mark Hendrick (Labour/Co-operative, Preston)
Thanks very much for attending today’s meeting. I will start with Dr Caroline Johnson.