I welcome the Secretary of State to his new role, and I pay tribute to his predecessor, who was courteous and respectful to me at all times.
This Bill is just one part of a broader programme of constitutional reform designed to allow the Government to restrict the rights of some of their most vulnerable people, whether it is the Elections Bill putting barriers in the way of ordinary people being able to vote; the Police, Crime, Sentencing and Courts Bill restricting the right to protest publicly; the Nationality and Borders Bill potentially criminalising people for saving the lives of asylum seekers; or this Bill reducing access to justice for those who have been badly treated by a public body. As Liberty has said, there is
“a concerted attempt to shut down potential routes of accountability and exert the power of the executive over Parliament, the courts and the public.”
Since my first election in 2015 I have sought to ensure that my constituents understand what goes on in this place. I think we can all agree that there is much that perplexes people, and that there are many levers that we and they can use of which they are not aware. There is a huge learning curve for a new MP so, as I got to grips with things, I tried to pass on what I learnt.
As time has moved on, I have turned my attention to the complexity of the language which can create barriers for people who do not do parliamentary speak. Since I became my party’s justice spokesperson, I have become acutely aware of the sometimes even more exclusive nature of legalese, so I feel something of a duty to interpret what is going on so that it can be readily understood by the average person in the street. To be clear, I am not questioning the average person’s ability to understand, but if someone does not use legal or parliamentary language regularly—and how many people out there do?—it will not come naturally. When we speak, we should remember that we are speaking not just to each other in here but to our constituents and to each other’s constituents. When they are losing their right to justice, we have an absolute duty to make sure that they know that that is what is happening. That is what I hope to do today. I am also happy to confirm that we are opposed to much of the Bill and will vote against its Second Reading.
Clause 2 seeks to oust Cart judicial reviews and, in Scotland, Eba judicial reviews. If an individual feels that a public body—such as the NHS, their local council or the Department for Work and Pensions, to name but a few—has failed to follow the law correctly in its decision-making process, that individual can appeal to the first-tier tribunal. If the first tier finds against them and that individual believes it has made an error of law, perhaps by overlooking vital evidence or misinterpreting the rules, that individual can appeal to the upper tribunal. Currently, if the upper tribunal refuses an appeal on the decision of the first-tier tribunal, the individual can ask to have the decision judicially reviewed. All sorts of criteria have to be met—one cannot simply ask for and get a judicial review—but currently people can at least apply. The legislation before us will remove that right. One might say, “Well, they’ve already had two bites of the cherry,” but the independent oversight of judicial review is being removed only for the tribunal system; currently, all other judicial reviews will continue. I say currently, because I share the fears expressed today by the right hon. Member for Haltemprice and Howden (Mr Davis) in his article: we do not know where this will lead. We do know that it is so often the tribunal system that deals with the least powerful in our society, from whom the Bill removes the right to justice.
As the Law Society of Scotland has pointed out, the decisions of the upper tribunal are often taken by a single judge, based on the paperwork alone, so the person bringing the appeal has no opportunity to make their case in person, or to answer any questions that the judge may have. The opportunity to judicially review the decision of the upper tribunal is a vital last line of defence in cases in which the most fundamental of human rights are engaged.
We have heard much talk about the Government’s justification for taking away those rights, which appears to be the high volume of applications versus the low number of successful outcomes, but let us look at that. The evidence to support the Government’s position was so flawed that the Office for Statistics Regulation decided to investigate and found that the real success rate was at least 15 times higher than the Government figures showed. When the right hon. Member for Tottenham (Mr Lammy) mentioned that, I saw the Secretary of State laughing, as if that was a derisory amount, but if we use the figures calculated by the Public Law Project, we see that that would amount to 40 people every year being incorrectly denied their right to appeal in cases where, as we have heard, the stakes can be incredibly high.
The Government seem to class an appeal as successful only if it first overturns the decision of the upper tribunal, is given permission to appeal and that appeal is then won further up the chain. They completely miss the point that Cart reviews serve to correct errors of law even if the appeal is ultimately unsuccessful. I cannot for the life of me see how all this can happen without a legislative consent motion from the Scottish Parliament, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) has argued and will no doubt argue further in her speech.
Throughout my speech, I feel like I should be saying, “As the right hon. Member for Tottenham said,” because it feels like we have swapped speeches. I am trying to find different examples. We have heard that even the Government’s own figures say that the change will save only around £400,000 per year. Never mind the spending on the art collection: £2.6 million was spent on refurbishing No. 9 Downing Street as a media centre, and the saving represents less than one sixth of that. What is more important?
Let me return to why this type of judicial review is so important. I want to give an example of when it saved somebody’s life. This case concerns a Venezuelan man and his family who had fled to the UK after witnessing the violent murder of his friend by state actors. He arrived in Edinburgh and was refused asylum claimed on the grounds that if he was sent back to Venezuela, the perpetrators, who clearly had scant regard for human life, would seek to silence him. The first-tier tribunal and the upper tribunal surmised that, because he had suggested in evidence that he would not be able to recognise the killers, he had nothing to fear. Thankfully, he had that vital last line of defence and was able to judicially review the decision.
During the proceedings, the court found that both tribunals had made an error of law in misunderstanding this traumatised man’s evidence. He could testify to the time and location of the murder and he could be a credible witness in an investigation—perhaps his memory would be jogged by viewing photographs or creating
photofits. It was obvious that the perpetrators would surely know that and would do anything within their power to prevent him from speaking up on his return.
The upshot was that the man was allowed to appeal. He won his appeal and was saved from deportation and almost certain persecution and death. How can the Government justify even to themselves taking away those rights?
The reversal of Cart-type judicial reviews could, as Liberty and others have pointed out, affect cases of access to vital benefits, leaving people with disabilities and those facing destitution and homelessness without a last line of defence. Nobody can guarantee that they will not one day have a disability, and very few people can guarantee—perhaps a few in here can—that they will not be absolutely dependent on disability benefits to survive financially. If, for some reason, they were to be denied those benefits, as happens far too regularly, and appealed against it, they would deserve the right to question that decision-making process.
I want to focus now on the suspended quashing orders and the prospective-only remedies in clause 1. They will not apply in Scottish courts, but because they can and will affect UK-wide laws, they will affect people living in Scotland—until, of course, we are independent, which I hope will not be too long from now. These changes could have a big impact on the Scottish courts for other reasons that I will come onto a little later—it is something known as forum shopping. Whether or not these orders are primarily for England and Wales, they are just plain wrong.
Let us look at quashing orders. The right hon. Member for Tottenham talked about the case of the employment tribunal fees. Basically, in a landmark judicial review in 2017, the Supreme Court found in favour of the applicant. I will not repeat everything that he said, but given that people were being charged up to £1,200 to access justice, this was a great outcome that will have made a big difference to many. If clause 1 had been in place then, those extortionate fees could have stayed in place until a date determined by the court. That would have given the Government time to rectify the unlawful policy. In other words, they would have been able to change the law so that the thing that had just been judged to be unlawful was suddenly lawful. Is that not incredible?