It is a pleasure to open the debate and speak to the new clauses and amendments that stand in my name and those of my right hon. and hon. Friends. I am grateful to the Government for their co-operation on the programme motion, and to the Minister and his colleagues for the civilised way in which we have debated the Bill thus far. Unfortunately, they were not persuaded by our arguments in Committee, so if there is no movement today, the Opposition will vote against the Bill on Third Reading, as we did on Second Reading. We have issues with part 2 of the Bill, which will mainly be dealt with by my hon. Friend the Member for Stockton North (Alex Cunningham) in the debate on the second group of amendments, although I will deal in this group with our concerns about chapter 4 on coroners and our proposed new clauses 4 to 6.
I start with amendments to part 1 of the Bill, which are the most numerous and most needed to try to redeem the Bill. There is a strong clue to the Opposition’s approach in amendment 23, which we tabled to leave out clause 1 in its entirety. I have also signed amendment 5, tabled by the Liberal Democrats’ spokesperson, the hon. Member for Bath (Wera Hobhouse), which would leave out clause 2. In short, we see no merit at all in part 1 of the Bill and would strike it out.
The purpose of judicial review is to determine whether public bodies have made lawful decisions and to provide remedies where they have not. The conceit of the Government’s approach, which would be taken further by new clauses 8 and 9, tabled by the right hon. Member for South Holland and The Deepings (Sir John Hayes), is that the courts are trespassing on the rights of Parliament, substituting their views for ours and, in some ways, entering the realm of politics. We read that the Justice Secretary and the Prime Minister think that the Bill, which was introduced by the previous Lord Chancellor, the right hon. and learned Member for South Swindon (Sir Robert Buckland), does not go far enough in clipping the judges’ wings. They seek to remedy that through repeal of the Human Rights Act 1998 and its replacement by a so-called new Bill of Rights and an interpretation Act: an annual audit by Parliament of which judicial decisions it likes and which it seeks to overturn. The Opposition think that that is constitutionally wrong and a provocation.
A better way to look at the role of the courts was set out by the late Lord Bingham in A. v. Secretary of State for the Home Department who, in rejecting submissions from the then Attorney General in that case, said:
“I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not
answerable to Parliament. It is also of course true…that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic.”
We celebrate the role that judicial review plays in our constitution in amendment 30, which says that
“judicial review is of fundamental constitutional importance to the rule of law, the accountability of public bodies and the government in particular, access to justice and the protection of human rights and that limitations on access to judicial review should only be imposed where strictly necessary and proportionate.”
Should the Government prefer that wording to that of the clause, that would be welcome. Failing that, we have tabled 11 further amendments that cumulatively or, in the alternative, seek to mitigate the worst effects of clause 1.
The clause introduces suspended or prospective-only quashing orders and cements them with a presumption that they will employed by the courts in most cases. The Government-appointed independent review of administrative law, which was supposed to lay the groundwork for the Bill, did not recommend prospective-only orders and specifically disapproved any presumption as to their use. Prospective-only orders could deprive claimants of a proper chance of redress and will certainly create a chilling effect. What is the incentive to pursue judicial review if the claimant has no prospect of having the wrong righted?
The presumption is the clearest but not the only way in which the clause seeks to fetter judicial discretion. The Opposition’s remaining amendments seek to restore that discretion and attack the most prescriptive parts of the clause. Amendment 24 provides that modified quashing orders will be applied only where, in the court’s view, it is in the interests of justice, and that they ought to be confined to those rare cases where a quashing order might cause, for example, significant disadvantage to third parties. Amendment 31 recognises that suspended quashing orders may be beneficial in some cases but seeks clarity from the Government on their intentions and what conditions they feel should be met when using the provision.
Amendment 26 looks to preserve collateral challenge in the event that such modified quashing orders are used. Let us say that delegated legislation made during the coronavirus crisis that created imprisonable criminal offences was declared illegal by a court. If a court granted a prospective-only quashing order under the Bill, that would make imprisonment legal before the remedy. A person accused could not argue before the criminal courts that the statutory instrument was invalid, because the measure requires a judge to act as if it were valid. The amendment seeks to protect a person’s right to use the court’s decision as a defence in criminal proceedings.
Amendment 27 clarifies any factors that the court considers are a matter for its own judgment. The current use of “must” instead of “may” directs the judge’s reasoning and interferes with judicial independence and discretion. That is especially obnoxious as judicial review is discretionary and involves taking account of all the factors before the court. The court must be able to do justice on the facts, not be nudged to decide cases favourably to the Executive.
Amendments 33 to 35, 28 and 32 deal with the list of factors the Bill requires the courts to consider when applying a quashing order. For example, amendment 33 will remove a factor that would unfairly disadvantage the claimant. Amendment 34 recognises that a suspended or prospective-only quashing order can leave a claimant waiting for justice, so it asks the court to be mindful of a timely remedy. Amendment 28 would remove the requirement to take account of actions that the public body proposes to take. For example, if a public body tells a court that it intends to carry out certain measures to fix a problem, the court may suspend the quashing order, but if the public body goes away and changes its mind on the actions that it will take, the claimant, again, is left without a timely remedy. Amendment 28 would ensure that the court does not have to take account of the proposals made by a public body, and so a quicker remedy for the claimant ensues. Taken together, the amendments rebalance the proposal in clause 1 to protect the rights of claimants.
Amendment 29 clarifies that the principle of good administration includes the need for administration to be lawful. Let me finally, in addressing clause 1, turn to amendment 25, which would remove the presumption that suspended or prospective-only quashing orders should be used, and, instead, favours an effective remedy being offered to the claimant so that justice is preserved. The presumption set out in clause 1(9) undermines the independence and discretion of the court. The presumption acts on a one-size-fits-all approach to justice and does not respect the judge’s ability to assess the facts laid out in front of them in their courtroom and decide on a suitable conclusion. Amendment 25 also has a further protective factor that, if clause 1 is kept within the Bill and suspended and prospective-only quashing orders are to be used, there will be a pre-condition that there will be an effective remedy. If a single step could improve this part of the Bill, save abandoning it entirely, it is the removal of the presumption. For that reason, we wish to test the House on amendment 25 this afternoon and put it to a vote at the end of the debate.
Clause 2 ousts the jurisdiction of the High Court in relation to what are called Cart judicial reviews and removes the supervisory jurisdiction of the court over the tribunal system in those cases—for example, where the upper tribunal has refused the claimant the right to challenge the decision made in the first-tier tribunal not to allow and appeal the earlier decision.
In Committee, we objected to clause 2 both because of the nature of the cases subject to the Cart jurisdiction, which are primarily, but not exclusively, immigration and asylum cases, and because, on the Government’s own admission, it is designed to set a precedent for future employment of ouster clauses, which they clearly intend to become a more common feature of legislation. That is another attempt to subvert the authority of the courts. Unlike with clause 1, there is little that could be done to improve clause 2—you either like it or you don’t. Therefore, most commentators who are concerned by it think that the only solution is to strike it down. That was also the view of both Opposition parties in Committee, and we see from amendment 5 that it is also the view of the Liberal Democrats whose amendment to leave out clause 2 I have signed.
Contrary to the Government’s narrative that Cart judicial reviews are profligate, they are only allowed to proceed where there is an arguable case that has a
reasonable prospect of success that both the decision of the upper tribunal refusing permission to appeal and the decision of the first-tier tribunal against which permission to appeal was sought are wrong in law. The claim either raises an important point of principle or practice, or there is some other compelling reason to hear it. Again, this is a mechanism to right a wrong. In the instance of Cart judicial review, it is to be used when there has been a serious error of law in the first-tier tribunal and stops deserving cases slipping through the net.
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Cart judicial review is usually used for asylum or human rights cases. As all Members will know from their casework, such claims are not only complex, but have serious consequences for the claimants and are often matters of life and death. The independent review of administrative law did favour doing away with cart JRs, but these recommendations were based on the wrong statistics—a very low success rate of 0.22%. The Government now admit that the success rate could be 15 times higher, at 3.4%. Other analyses estimate 5% or even above 7%.
In Committee I cited many compelling cases, which I do not have time to repeat here. We are concerned about the consequences for individuals currently protected by the right of appeal, albeit in narrow and prescribed circumstances. But we are also worried about the precedent being set for expansion in the use of ouster clauses. Clause 2 is not just a threat in this Bill but could come back to haunt us again and again if we do not act now to remove it. It is for this reason that I oppose Government amendment 6. If the clause is to stand, the protection given by proposed new subsection (4)(c) is essential. This allows an appeal where the upper tribunal has acted
“in bad faith, or…in fundamental breach of the principles of natural justice.”
This already heavily caveated exception—why bad faith rather than bias; why fundamental breach rather than material breach—will be compounded if the exception on natural justice is qualified by the phrase “procedurally defective”. I therefore ask the Government not to compound the offence and to drop their amendment.
I turn to chapter 4 of part 2, which deals with coroners, and to our new clauses 4 to 6. I make no apology for re-tabling these new clauses, which were discussed in Committee, as they address a burning injustice. But let me first make a brief comment about what is in the Bill.
The Government explain their proposals as a series of reforms to the coroners courts to improve their efficiency and help with the backlog. They mirror some of the provisions in other parts of part 2. We do not object to these in principle, but serious concerns have been raised about clauses 37 to 39. Clause 37 allows for the discontinuance of an investigation where the cause of death becomes clear before the beginning on an inquest. But the evidence for discontinuance may change once tested, and this could be significant, for example, where a death in the community appears initially to be from natural causes. Without the necessary safeguards, some deaths will not be properly scrutinised. Clause 38
gives coroners the power to hold inquests in writing where they decide that a hearing in unnecessary. This takes away a family’s right to request an in-person hearing. Clause 39 would enable remote attendance at inquest hearings. This has implications for accessibility, transparency, participation and open justice.
Taken together, clauses 37 to 39 risk further entrenching levels of coronial inconsistency, which is a continuing problem in the coroners service, and they could exacerbate the difficulties faced by bereaved families who are not eligible for legal aid in navigating the inquest process. I hope that we can return to these issues when the Bill moves to the other place.
The clauses also draw attention to what is not in the Bill. The Bill does nothing to address the ongoing and deeply unjust inequality of arms in the coronial courts. It misses the opportunity to put bereaved people at the heart of the inquest system by providing non-means-tested public funding for bereaved families at inquests where state bodies are represented. The current funding system for the bereaved at inquests is fundamentally unfair. State bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs or to represent themselves. Others have resorted to crowdfunding. The Bill presents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authorities, and public authority interested persons. New clause 4 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies are legally represented.
New clauses 5 and 6 would ensure that the early stages of legal help are available to the bereaved by removing the means test for legal aid applications and bringing the definition of family into line with that in the Coroners and Justice Act 2009.
We are well aware of the draft Hillsborough Bill and the 33-year battle for truth that those families fought. At the original Hillsborough inquest, families received no public funding for representation, while state bodies were represented by five separate legal teams. That led to the draft Hillsborough law, which would provide for a statutory duty of candour for public bodies alongside publicly funded legal representation for bereaved families. The time for that proposal not only has come, but is long overdue. I know that there is cross-party support here and in the other place. If the Government are not yet ready to address that long-standing injustice, we will divide the House on new clause 4.