Committee stage in the Commons
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Andy Slaughter (Hammersmith) (Lab)Labour- Quote
- I am a non-practising barrister.
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- 09:30
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Sir John Hayes (South Holland and The Deepings) (Con)Conservative- Quote
- Q 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 one? Professor Ekins: I will go first, since you directed that at me. It is true that the independent review of administrative law noted a worrying trend in relation to cases in which fairly abstract constitutional principles were used to develop the law in surprising ways. It is true that the review held short of recommending legislation in response, but it attended to this as a problem, and I think it is quite rightly within your field of vision as something that should be attended to. The review noted in particular the perfect legitimacy of Parliament legislating in response to particular cases that it thinks break new ground in problematic ways, which might include the Prorogation judgment or Unison, Evans and other cases. That would also include the Adams case, which the review briefly referred to. It is very true that that case made a significant change that is problematic for our law and government. Sir Stephen and I wrote a paper last year for Policy Exchange noting the shortcomings of the judgment—that it really undermines the Carltona doctrine, which is central to the way in which Parliament confers power on Ministers and how civil servants exercise that power. I think it will be a very good contribution to the rule of law to restore and vindicate that principle. Sir Stephen Laws: If I can come in, I endorse everything that Professor Ekins said. The Adams case is very disturbing and undoes the assumption on which, for almost three quarters of a century, government has carried on. It needs to be urgently reversed. On the question of parliamentary sovereignty, one of the great defects of the law as currently applied in proceedings for judicial review is that it does not adequately distinguish between the different sorts of decision making to which it is applied. It assumes that the same or very similar principles, processes and remedies are appropriate for a challenge to what you can call casework decisions by public officials in individual cases as should be applied to challenges to legislative decisions. It seems to me that courts are deciding what the rules should be in future, hypothetical cases, or what the rules should have been in past cases that are not before them. They need to apply very different principles from those that they apply when they have one case before them and the public official has been doing something very similar—[Interruption.]
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- 09:35
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- Andy SlaughterLabour
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- 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?
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- 09:41
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- Andy SlaughterLabour
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- Any of the witnesses.
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- 09:41
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- Andy SlaughterLabour
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- 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? Professor Ekins: In part. With respect, I would not say tit for tat, but judgments that put the law in doubt in significant ways, or break new ground in ways that are constitutionally problematic, deserve a response to correct the law. It is not a response to dress down the judges; it is to restore or make the law to that which Parliament wishes it to be. I think that much good can be done by a systematic response to cases where the law has been changed in difficult ways. That would be the central mode of action. There is a sense sometimes, though, that one should respond to grounds of action. For example, a legislative response to the Adams case—I have drafted a possible response—would not necessarily, and does not, mention that case by name, but it restates the Carltona principle. It makes it clear that the Carltona principle has a central place in our law and constitution—so, partly just a general change but motivated by cases where this has been put in doubt.
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- 09:44
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- Andy SlaughterLabour
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- 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. Professor Ekins: With respect, I do not think that it is a radical departure. I think that legislative responses to judgments that put the law in a difficult place were, maybe not routine, but they are certainly unimpeachable constitutionally. In a sense, this is an opportunity, in this Bill, to look back across several decades of legal development, or at the least the last decade or two, and make some changes that are worth making in this context. Whether power should be used by statutory instrument, I would be much less comfortable with, in so far as some of the changes we are talking about involve the meaning and application of a judgment.
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- 09:46
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- Andy SlaughterLabour
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- 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. Professor Ekins: I would not imagine that it needs to be emergency legislation. Sometimes it will have to be, as was the case after the Ahmed case, where legislation was moved from within a matter of weeks to a number of days, but much more often, we simply need to pay attention and be willing to bring forward legislation in response. Obviously, legislative time is scarce, so that will always be difficult to prioritise, but noting when the law of judicial review has been developed in startling ways that really are not justified in responding is a significant exercise of Parliament’s responsibility.
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- 09:47
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- Andy SlaughterLabour
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- 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? Professor Varuhas: These remedies will not prevent anyone from getting in the court door, because they are remedies, which apply after a finding of unlawfulness has been found by a court. I think these remedies are welcome, because they provide for a greater remedial flexibility for courts—for courts to tailor remedies in their discretion, to the exigencies of the particular facts of the case. It is important to bear in mind that these remedies will be discretionary and the courts will take into account a range of relevant considerations in exercising that discretion. Courts are well versed in exercising remedial discretion—courts can be expected to respond to the justice of the particular case. What the Bill does is to give the courts more options. The most common consequence of a finding of unlawfulness is that the impugned administrative measure is a nullity, which means it never existed. That will suffice in many cases, but in some cases it will be an overly blunt measure that can have very drastic effects. For example, a large infrastructure project may be started and there might be a slight technical or procedural error at the outset. If the project proceeds and is then nullified as if it never existed, that will have very negative effects on the people who had contracted with the Government and, by being critically disruptive, on the national economic interest, and could lead to significant economic waste. In that sort of case, a suspended order allowing the Government time to respond to the finding of unlawfulness and make relevant provisions to accommodate that finding, or a prospective order that holds that what has gone before remains good and that the nullification takes effect only prospectively, can play an important role in protecting very important public interests, interests of good administration and the interests of third parties who might interact with Government. Indeed, if something like a large infrastructure project were invalidated, it could undermine the confidence of market players in contracting or working with Government, because the rug could be pulled out from the project at some later point once a lot of money and time has been sunk into it. I think these are very moderate reforms seeking to give the courts greater remedial flexibility to tailor remedial responses to the particular context of the case, in the light of the range of interests implicated. Sir Stephen Laws: I am sympathetic to people who have a view about what remedies should be granted to litigants in the case in question, but I am not sympathetic to the idea that judicial review should be an extra step in the political debate about whether a piece of legislation should exist or continue to exist. The Unison case provides a startling example of the sort of absurd consequence that you would get from the nullity remedy. In that case, the courts overturned fees to be charged to people who wanted to take their employment cases to hearing. The result of nullifying the regulations involved a very large amount of money being paid not to the people who were deterred from bringing their cases to employment tribunals, but either to the people who did bring them and lost, or to employers in those litigations who lost and had to pay the fees of the people who had been successful. That was a ridiculous remedy for a mischief that harmed people other than those who got their money back. Professor Ekins: I agree with my colleagues that clause 1 increases remedial discretion and focuses it to some extent, although one can argue about how it does that. Much of the response to these two clauses has been overstated. We have not yet spoken about clause 2 and the limitation of review of the relevant decisions of the upper tribunal. Again, that has been a bit misunderstood or framed and received by some groups as though it were an abolition of judicial review at large in some way, but I think it is a restatement of the law that Parliament tried to create in 2007 in the relevant legislation. The Supreme Court sort of glossed that in 2011, and many senior judges have been unhappy with the way that it was decided then and the way it was worked out subsequently. In limiting review in the way that clause 2 does—with plenty of safeguards, I should add—one is not barring the door to the courtroom, but bringing an end to an otherwise never-ending series of procedural steps. Looking into it, one can always find a benefit from further procedural steps, but it is a perfectly reasonable and proportionate response to limit judicial review in that context, where the decision maker in question is another court. It is not a Minister detaining someone, or something like that; it is the upper tribunal, and as a court, it warrants an immunity from judicial review in that context. People should be much more relaxed than some have been about those two measures.
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- 09:52
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- Andy SlaughterLabour
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- 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?
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- 09:59
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Tom Hunt (Ipswich) (Con)Conservative- Quote
- Q 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?
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- 10:06
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- Tom HuntConservative
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- indicated assent.
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- 10:11
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- Sir John HayesConservative
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- 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?
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- 10:11
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Dr Caroline Johnson (Sleaford and North Hykeham) (Con)Conservative- Quote
- 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.
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- 10:12
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The Parliamentary Under-Secretary of State for Justice (James Cartlidge)Conservative- Quote
- 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?
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- 10:23
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- James CartlidgeConservative
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- It probably has to be Professor Varuhas. Professor Varuhas: I reiterate what I said before in response to your question. The phrase on the number of bites of the cherry comes from a speech given by Lord Carnwath, who raised this point and considered that it was disproportionate that an applicant in this context should have so many bites of the cherry, given that the upper tribunal has the status of the High Court. It is a judicial body, independent of Government, that is staffed by senior members of the judiciary with specialist expertise. Given the credentials of the institution, it seems disproportionate to allow a further three or four bites of the cherry after an application has proceeded through those stages and been found not to have merit. I think the point is well made. I will abuse my position to add one further point on the remedies provision. Professor Ekins reminded me that I meant to say that one discretionary factor that should be added under subsection (8) is the public interest, which is a curious omission because the public interest can be seriously prejudiced by decisions on remedies in the interests of the economy, national security and so on. That should be factored into the remedies. Although I went slightly off topic at the end, I certainly agree—
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- 10:23
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- Dr JohnsonConservative
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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.
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- 10:29
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- Dr JohnsonConservative
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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.
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- 10:35
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- Dr JohnsonConservative
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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.
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- 10:37
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- Andy SlaughterLabour
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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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- 10:38
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- Andy SlaughterLabour
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- Q You are saying there are two separate issues: whether it is a sensible proviso, and whether there is certainty at the moment. Dr Morgan: Yes. My position is that it is a sensible remedy, and at the moment, it is certainly not clear whether the courts can do it. Clause 1 will, beneficially, clarify that.
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- 10:39
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- Andy SlaughterLabour
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- But a court might attempt to impose— Dr Morgan: For a court below the Supreme Court, the obvious precedent that the applicant would cite would be Ahmed, and it would be very hard for a lower court to get round that, I think.
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- 10:39
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- Andy SlaughterLabour
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- 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? Professor Feldman: One of the difficulties of having a prospective-only remedy is that it is only prospective, and by definition a remedy of this kind would take effect only if the court had already decided that the claimant had been treated unlawfully. To say to a claimant, “This is going to be prospective only” strongly implies it is not going to protect the claimant himself or herself. Some way would have to be found of protecting the claimant, and other people in the position of the claimant, if one did not want to be stuck in the position of saying, “These people were treated unlawfully, but they are not going to have a remedy.” In clause 1, there is nothing that makes it explicitly clear that a court could say, “I am going to give you a prospective-only remedy, except that it would be retrospective for the purpose of protecting you.” The court might be able to do that, but then you also have the problem of other people in the same position as the claimant—all those people would have been treated unlawfully. It seems strange to me that they should have to suffer unlawfully because the remedy is only prospective. The language of clause 1, under which proposed new section 29A(4) of the Senior Courts Act 1981 would state, “if the impugned act is…upheld” is very odd. Subsection (5) says, “it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.” That makes it quite difficult to see why one should give a remedy to people who are deemed in that case not to have suffered a legal wrong. I think it is quite a problem, unless the clause is amended to expressly allow a judge to give a remedy to someone who has obtained a prospective-only order, despite the fact that the law and treatment were to be treated as entirely lawful.
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- 10:42
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- Andy SlaughterLabour
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- 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? Dr Morgan: Yes. That point was made by many Members on Second Reading. It could be a real problem, in particular if it became the norm and the court ordinarily postponed orders. In my view, the court should not ordinarily do that; it should be in exceptional cases only. That takes us on to the presumption in subsection (9) —but perhaps we will come back to that at a separate point. There are two problems with it: first, the presumption; secondly, the absence of a compensation power. Professor Feldman: May I add two things to what Dr Morgan has said? I agree with what he says in principle. First, the compensation remedy may not be useful to all claimants. If one is about to be deported as a result of having one’s unlawful decision treated as lawful, for example, compensation is unlikely to be an effective and adequate remedy. There are lots of other types of administrative wrong that lead to people suffering loss or injury that cannot readily be financially compensated. Secondly, if one is going to compensate, one has to consider all the other people who have been treated unlawfully, who are in a similar position to the claimant, but who are not before the court, so the court cannot order compensation for them. Perhaps one needs to consider whether a court should be empowered to require the provision of a compensation scheme for all those in a similar position to the claimant. That could be a lawful step. It is also true, as Dr Morgan said, that the administrative law of the English system does not treat financial compensation as a readily available remedy. Therefore, some express permission would have to be made to allow the courts to do it.
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- 10:47
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- Andy SlaughterLabour
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- 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? Dr Morgan: I would take the presumption out altogether. I think what this clause is doing—certainly what it should be doing—is enlarging the power of the courts to tailor relief in a way that they see fit, and removing the obstacle that the Supreme Court laid in their path in Ahmed v. HM Treasury (No. 2). Thus, I just do not see why it is there. The Government say that it is to encourage the courts to use this remedy, but I do not see why we should try and push the courts in a particular direction. I also think, if subsection (9) is taken out, subsection (8) could be taken out as well. At the moment there is a need to try and direct the court what to take into account; the drafting is already getting very complicated. I think that probably everyone who has written you a paper has suggested more paragraphs that could be put in subsection (8); I think it is going to end up very long indeed. We are talking here about High Court judges; it is very senior judges who will be making these decisions, and in my view, they can simply be trusted to make the appropriate decision based on the facts. That is my first point—I would take it out. If we are going to keep it in, it is virtually doing nothing at all. I think the courts will be very reluctant to find that there is an adequate redress, because they will say, “The claimant is not going to get anything, so that is not adequate redress.” I think if the court does find that it is satisfied, they will say, “There is a good reason to make the quashing order immediate and retrospective, because that is what we ordinarily do. It is important to do that to keep the Government within the limits of its powers.” I think that subsection (9) is not going to do anything other than generate needless litigation about this; it will become a question that has to be considered in every case, whether it is really relevant to the facts or not. Therefore, I suggest that subsection (9) should go.
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- 10:47
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- Andy SlaughterLabour
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- Professor Feldman, do you agree with that? Professor Feldman: I do. Subsections (8) and (9) have twin disadvantages. First, they try to create a presumption that something will happen regularly, when we know that it will not, for the reasons that Dr Morgan has given. Secondly, they are unnecessary because the courts are quite capable of making judgements for themselves. Look at subsection (8)(f): “any other matter that appears to the court to be relevant.” This opens up the field very nicely; I do not see anything there that is necessary.
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- 10:47
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- Andy SlaughterLabour
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- 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? Professor Feldman: Is that for me?
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- 10:47
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- Andy SlaughterLabour
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- For either, or both. Professor Feldman: I will start then, if I may. I think there is a real difficulty about a provision of this kind being used as a template, because there are two questions that arise. First, is this a situation in which it is justifiable to exclude the High Court supervisory jurisdiction? Secondly, have we drafted a provision that will work and have that effect? In relation to the first, I think it is important to note that parliamentary sovereignty and the rule of law generally require that people should have access to courts to determine the lawfulness of action. There is a functional inconsistency between Parliament’s saying that there are limits to the powers of a body or person and, on the other hand, saying that that person or body can decide for themselves, effectively, what those limits are. That is quite apart from the importance of access to courts for the rule of law. I approach this by asking whether this sort of exclusion of review is justifiable. On balance, I think it is, for a combination of reasons. First, because it excludes review of judicial bodies, not of administrative or executive agencies. Secondly, because the number of people who will suffer, although we can never be quite sure, looks as if it will be relatively small compared with the number of people who would suffer generally if we cut off all judicial review. Somewhere around 3.4% of these cases end up being successful, the Government estimate, compared with 30% to 50% in most other judicial review situations. Bearing in mind the need to use judicial time as efficiently as possible, it may be that this is not a proportionate use of judicial time, in which case one might say—although I say this with great disquiet—that the ouster is justified. Does it work? Yes, I think it does, for roughly those reasons. Courts will not kick against it, given that the claimant will have had two bites at the cherry already before a judicial tribunal. Is it a template? I am not sure that it will be either necessary or perhaps effective to use this sort of thing in situations in which someone is getting review of other types of decision by other types of agency in different circumstances. For example, I note that in another Bill before the House, the Dissolution and Calling of Parliament Bill, there is an attempt to exclude judicial review of decisions concerned with Dissolution of Parliament and purported decisions. Clause 3 of that Bill does not go into any such elaborate provision as are provided here. Presumably, the drafter of that considers that it will work, because of the nature of the decision that is being considered. Dr Morgan: My position—
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- 10:59
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- Speaker
- Sir John HayesConservative
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- 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. Dr Morgan: There was a debate earlier about whether this should be described as tit for tat, which I do not like either, but doing it on a case-by-case basis. If you are not a lawyer and you read through the Cart judgments, you will see that it is all highly technical stuff about the number of appeals you should have within a particular structure. I have never heard anyone suggest that the judges in Cart were guilty of judicial activism. I think it is a relatively technical problem that has created a lot of expense and lots of hopeless judicial reviews, and the Government are taking action to address that. I will not keep saying “sexier subjects”, but the more egregious examples of muscular judicial review have been mentioned earlier: Privacy International, the Prorogation case, and Evans v. Unison. There is a case for Parliament to reverse them. In my view, it has a constitutional right to do so if it wishes, but they should probably be taken one by one. Maybe we need a different Bill to do that, and the Government can tell us whether that is their intention, but the two clauses here deal with some real problems in a fairly unflashy way. Ouster clauses might be needed if we are to reverse the other cases, but I think that has to be debated separately. It is not really within the scope of the Bill at all.
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- 10:59
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- Sir John HayesConservative
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- 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. Dr Morgan: In my view, it would be a shame if the valuable things that are in the current Bill were lost because other things were put in that were frankly much more controversial. I am not the manager of parliamentary time; I do not know how easy it is to get another Bill going through. There is always a temptation—the Minister laughs—to tag things on, so maybe this is an opportunity not to be missed. I have read Richard Ekins’s list of desirable amendments, which would keep Parliament going for about five years, and with heated rows, if all those were put in.
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- 10:59
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- Sir John HayesConservative
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- I will take that as an invitation to table some desirable amendments and probe the Government on exactly that matter. I am grateful.
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- 10:59
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- Sir John HayesConservative
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- 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. Professor Feldman: Thank you. I shall read it with interest.
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- 11:06
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Janet Daby (Lewisham East) (Lab)Labour- Quote
- Q 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 proceedings? Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area. The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
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- 11:06
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- Janet DabyLabour
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- Yes, that is fine.
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- 11:08
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Marco Longhi (Dudley North) (Con)Conservative- Quote
- Q 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 step? Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it. Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.
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- 11:09
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- Marco LonghiConservative
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- Thank you. I am glad that you referred to the words “less extreme” in your commentary. Professor Feldman: I agree with what Dr Morgan said.
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- 11:10
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- James CartlidgeConservative
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- 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? Professor Feldman: That is a perfectly fair point. Success rates in judicial review are extremely difficult to assess. There have been some very good studies. The consensus that has emerged seems to be of between 30% and 50% success rates, which takes account not only of the favourable decisions from judges, but also of the favourable, or more or less favourable, out-of-court settlements of the claims, which allow litigants to withdraw their claims before they get to a full hearing. If it is 3.4% or so, that is, I would say, a significant but not huge figure. The question for Parliament is: what amount of injustice should be contemplated as acceptable in the face of the shortages of judicial time? As the Supreme Court said in Cart, if you overload judges with a certain type of decision, less time is available for them to deal with other types of claims, which might be equally or more deserving. It is a really difficult question, but I think it is a fair one. Dr Morgan: This is a deeply political question, because what it requires is a trade-off between expense, court time and the rational use of limited court time against the achievement of justice. We must not forget that sometimes Cart reviews do succeed. That means that there is either a point of law of public importance that the High Court has corrected, or that something has gone very seriously wrong with the facts of a particular case. Again, the High Court has given justice to the particular individual. The kind of cases we are talking about involve very vulnerable individuals. It was put rather well by Andy Slaughter on Second Reading: “Cart reviews are a last-gasp defence for some of the most vulnerable people in the most desperate situations.”—[Official Report, 26 October 2021; Vol. 702, c. 230.] In order to save money and economise on judicial resources, that is the cost that Parliament faces. In the end, that is why this is probably a question for Parliament, rather than the courts, because Parliament has the public purse, which the courts do not. It is very hard for the courts to make decisions which inevitably influence resource allocation. That is not a criticism of the Supreme Court and Cart. Lord Dyson in Cart said something very interesting. He suggested that Parliament in 2007 should have addressed this question and failed to do it, and it now fell to the courts to do it instead. That was the suggestion in Cart itself; the courts felt they had been left to deal with some unfinished business in the 2007 Act. Well, the courts gave their answer and, in my view, Parliament is fully entitled to take a different view, but with the costs of it to certain individuals squarely in mind.
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- 11:12
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- James CartlidgeConservative
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- 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.
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- 11:16
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- Dr JohnsonConservative
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- 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.
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- 11:17
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- Dr JohnsonConservative
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- 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.
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- 11:17
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