Lords consideration of Commons Amendment and Reasons to the Judicial Review and Courts Bill - Apr 27
|
Motion A Moved by Lord Stewart of Dirleton That this House do not
insist on its Amendments 1, 2 and 3, to which the Commons have
disagreed for their Reasons 1A, 2A and 3A. The Advocate-General for
Scotland (Lord Stewart of Dirleton) (Con) My Lords, with the leave
of the House, in moving Motion A, I will also speak to Motions B
and C. A number of changes were made to this Bill in the House of
Commons. I will cover both those changes and the amendments tabled
to the Bill...Request free trial
Motion A Moved by
Lord Stewart of Dirleton
The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con) Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures. Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate. My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly. We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said:
“The key question becomes the nature and effect of the legal
change at issue in order to determine whether a prospective
remedy is appropriate. The legitimacy of its use turns on the
answer to this question.” After considering various factors, it went on to say:
“They may include reasonable or in good faith reliance by
governments … or the fairness of the limitation of the
retroactivity of the remedy to the litigants.” Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly: “Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer.” 16:15:00 I submit that we can trust our judges to follow the example of their Canadian counterparts and to use these remedies as and when they deem them to be appropriate for all parties involved, with consistent regard to interests and expectations of those who may benefit from or be disadvantaged by retrospective quashing, as set out in new subsection (8)(c) and (d), as inserted by Clause 1. I think it also worth noting that, although separate, the removal of the presumption should reduce concern about prospective-only remedies. I remind your Lordships that the vote on this issue on Report was very narrow. I hope some of those who previously opposed giving judges this new power will now be able to remove their objection. At this point, I should also touch on Amendment 1B by the noble Lord, Lord Marks, on the interests of other parties who may be able to claim a remedy if a retrospective instead of prospective order is used. I do not think that this amendment is necessary. New subsection (8) sets out what judges should consider when determining an appropriate remedy, and as I have set out already, that includes the interests or expectations of persons who would benefit from the quashing of the impugned act. I believe this is sufficient to include the concept that the noble Lord, Lord Marks, puts forward. The court may also set conditions on the orders it makes, which means it has the capacity to tailor the remedy further. I am also reluctant that the list of factors should direct the court in any way, which this amendment appears to do. I trust the court to decide what is appropriate in each case. Therefore, I urge the noble Lord not to press this amendment. I turn now to the Eba case measures and to Clause 2. The judgment in the Eba case in Scotland, and the Cart case in England, made permission to appeal decisions of the Upper Tribunal subject to judicial review. The ouster clause, which will prevent this type of review in future, save for jurisdictional or procedural errors, is returned to the Bill in amendments made by the other place. This removes the alternative approach your Lordships adopted, originally proposed by the noble and learned Lord, Lord Etherton, which would have allowed judicial review of this sort to continue but made that judgment final. This effectively moved the bar one stage higher in the court system than the Government’s original proposal. I recognise that it was a thoughtful and considered attempt by the noble and learned Lord to find a middle ground. It is legitimate to argue that the bar should be set higher. As the Government set out, this is a question of where to draw the line, and there is no absolute, correct answer. We will all, I think, agree with the principle that there has to be finality to judicial processes to ensure that the court system can serve individuals efficiently and effectively. We believe that the scrutiny offered by appeal to the First-tier Tribunal, and then the Upper Tribunal, is sufficient—a proposition which is made out by the very low success rate of Cart or Eba judicial reviews. The Government are firmly of the view that our original proposal was the correct approach and that, unlike with the presumption, we must insist on this matter. I know that a number of noble Lords, in particular Lord Marks, have expressed more general concern about the Government using an ouster clause to give effect to their policy on Cart and Eba and that it has been suggested as a template for future potential ouster clauses. To be clear on to this, we describe this clause as a template because it is clear about Parliament’s intent, targeted at a specific and clearly identified policy mischief—in this case invoking the supervisory jurisdiction of the High Court over a refusal of permission to appeal from the First-tier Tribunal to the Upper Tribunal, itself a judicial body—and has appropriate protections in the form of the natural justice exemption. In these ways, it seeks to learn the lessons of previous failed attempts at ouster clauses that were too broad, too vague and did not offer adequate protections. Overall, I believe that removing the presumption strikes a balance on the judicial review measures. It is sensitive to the aims of the Government but also accommodates the concerns expressed in your Lordships’ House. Noble Lords will have also seen that the other place disagreed with the amendment of the noble Baroness, Lady Chapman, on legal aid for coroners’ inquests. Although the other place formally disagreed with this amendment because it engaged financial privilege, I assure noble Lords that the Government considered it carefully and did not disagree with it on a technicality. I know that your Lordships have debated that amendment twice already, so I do not intend to go into it in great detail. However, the Government have always believed that families should be at the heart of the inquest process and that there should be a fair funding system to support them. During the debates on the Bill and elsewhere, the Government have listened to the arguments made about the nature of inquests where public bodies are represented. I also note the argument that, while the inquest process is inquisitorial, the reality for many bereaved families is that it can feel adversarial where a public body is represented and a bereaved family is not. The Government continue to ensure that inquests put bereaved families at the centre of the process. Our legal aid means test review is currently out for consultation and proposes to make access to legal help for bereaved families at inquests non-means tested, which follows our change in January to make access to legal representation at inquests through the exceptional case funding scheme non-means tested. However, I have heard the arguments that the Government’s recent reforms to exceptional case funding do not go far enough. The means test review invites views on our proposals to remove the means test for legal help at inquests where the case relates to a potential breach of ECHR obligations or significant wider public interest. If anyone, whether a charity such as Inquest or a bereaved person, does not think that these proposals go far enough, they can of course respond to the consultation to that effect, proposing alternative solutions. The Government will consider all responses to the consultation and respond in the usual way. On that basis, therefore, I do not believe that Amendment 11B, tabled by the noble Lord, Lord Ponsonby, which calls for a further review of legal aid for inquests, is necessary. More widely, the Government are committed to supporting bereaved families going through the inquest process. Of course, how bereaved families are supported in the wake of a major disaster and proposals for an independent public advocate have been an important part of this debate. That will require further detailed work to ensure that any new functions such as those proposed are in the wider public interest; that they properly meet a need that inquests and inquiries do not; and that they do not adversely cut across established structures and processes. The Government will consider this further as part of our work to respond to Bishop James Jones’s review of the experience of the Hillsborough families. I beg to move. Motion A1 (as an amendment to Motion A)
Lord Marks of Henley-on-Thames At end insert “and do propose Amendment 1B in lieu— 1B: Page 2, line 23, at the end insert—“provided that the court should seek to avoid exercising the power under subsection (1)(b) in such a way as to deprive a remedy from any persons who would have been entitled to seek a remedy by reason of the unlawfulness of the impugned act but who had not themselves been party to the application for the quashing order.””
Lord Marks of Henley-on-Thames (LD) That presumption was by far the most offensive part of the Bill. It was rightly opposed across the House by lawyer and non-lawyer Peers alike. The noble Lord, Lord Anderson, is to be congratulated on the success of the amendment and I am grateful to the Government for accepting it. What we now have is an unfettered judicial discretion, circumscribed only by the requirement to consider the factors listed in Clause 1(8). I have made it very clear that I oppose prospective-only quashing orders in principle. I do so first on the basis that their effect is to give retrospective validation to actions or decisions previously taken or regulations passed by government that the court finds unlawful and merit a quashing order. They breach the principle that it is for Parliament, not the courts, to change the law. The second main reason for my opposition to such orders is that they do not protect those disadvantaged by unlawful government action taken before a quashing order takes effect. Where such an order is made, therefore, persons who are not before the court to present their cases are left with no remedy in respect of the unlawful action so they lose out against the well-funded, well-represented litigant who secured the prospective-only quashing order and the Government do not have to remedy the wrong for those affected before that order takes effect. That is a serious breach of the principle that proven wrongs should carry a remedy. I pointed out on Report that this involves us or may involve us in breaching our international obligations, in particular in environmental cases, under Article 9 of the Aarhus convention, the obligation to provide an adequate and effective remedy to all affected by a breach by public authorities in environmental law, and in ECHR cases under Article 13 to ensure provision of an effective remedy for breach of the convention. I believe those principles outweigh any possible usefulness of the availability of a tool in the judicial toolbox to relieve government of the effects of unlawfulness. It is said that unlawfulness may have worked to the benefit of some who relied on the law as they erroneously, as it turned out, believed it to be. For such unusual cases, any unfairness can be cured by administrative action or by suspended quashing orders with conditions to which we have not taken objection and/or by changing the law if Parliament sees fit to do so. That said, the elected House has rejected our amendments, so my amendment in lieu is tabled to bring into sharp focus only the second factor that I have outlined—the lack of a remedy for all those adversely affected by previous government unlawful action if a prospective-only quashing order is made. My amendment in lieu would require the court to seek to avoid making such an order in cases where a person who would have been entitled to seek a remedy because of the unlawfulness in question would be deprived of a remedy by the fact that the quashing order was prospective-only. The amendment would address the point I have been making and would keep us in line with our international obligations. I would like the Minister to accept it but if he cannot do so, as he indicated from the Dispatch Box in opening, then in line with the confidence that he expressed that it is intended that the courts should exercise the discretion, now thankfully presumption-free, with a view to avoiding the deprivation of a remedy that my amendment seeks to address, I would like to hear that assurance repeated and clarified. I should add that I have been very grateful to the Minister and to this colleague in the other place, Minister Cartlidge, for engaging with me on this issue in two meetings and to the Bill team for the helpful pack it has put together relating to the principles applied by the Canadian courts addressing the question of prospective-only quashing orders. Those cases in Canada have, of course, persuasive authority in this jurisdiction and it is clear that the Canadian courts have exercised the discretion with great care. They have worked on the basis that before a prospective-only quashing order may be justified, first, the court’s decision on unlawfulness must represent a substantial change in the law and, secondly, the interests of all litigants and potential litigants must be carefully considered and balanced. I point out that without the removal of the presumption, those principles would not be applied in this jurisdiction. They are, however, principles that I endorse and which underlie my amendment in lieu. I await the Minister’s further response with interest. 16:30:00 On Cart JRs, while I regret the rejection of the amendment from the noble and learned Lord, Lord Etherton, which I thought was an elegant compromise and removed what I see as a pernicious danger of this clause being used as a template for future ouster clauses, I am prepared to trust that this clause will be treated, as the noble and learned Lord assured us in his opening that it would be, as strictly limited to the circumstances it addresses. On legal aid at inquests, I look forward to hearing the amendment to be moved by the noble Lord, Lord Ponsonby. I do not believe, as has been advanced by the Government, the proposition that there is a distinction between inquisitorial and adversarial processes which justifies the inequality of arms that is inherent in a system that allows rich and powerful bodies, public and private, to outspend and outdo bereaved families at inquests. In our view, legal aid exceptional case funding does not meet that case. I beg to move.
Lord Anderson of Ipswich (CB) I do not share the principled objection of the noble Lord, Lord Marks, to prospective-only quashing orders. The noble and learned Lord, Lord Brown, wrote about this in the Times and I respectfully endorse what he had to say. But I am pleased that the noble Lord agrees at least that these prospective-only orders, whose place in our law is confirmed by Clause 1, are at least mitigated by the removal of the presumption.
Lord Pannick (CB) On topics as diverse as the Cart jurisdiction and breastfeeding, the noble Lord’s contribution as a Minister was marked by his hard work, his eloquence, his ability to respond constructively to the concerns of other noble Lords, and his wit. He is an enormous loss to the Front Bench and I very much look forward to his Back-Bench contributions. As I said in Committee, echoing the words of the noble Baroness, Lady Jones of Moulsecoomb, the only thing to be said in favour of Part 1 of this Bill, on judicial review, is that it could have been a great deal worse. I cannot work up any greater enthusiasm at this stage for these provisions. The Bill, in Part 1 on judicial review, is not quite as much of a damp squib as the efforts of a former Lord Chancellor, Chris Grayling, in his infamous Social Action, Responsibility and Heroism Act 2015—but it is a close call.
Lord Brown of Eaton-under-Heywood (CB) So there it is: orders can now be made subject to whatever limitations or conditions the judge thinks right and appropriate, and I respectfully suggest that this is so much better than the approach of the noble Lord, Lord Marks, with whom I am almost always in agreement—but surely not on this. He prefers retrospective legislation, but how unwieldy, inflexible and incapable of being adapted to the individual case that is, and how unwelcome as a whole we consider retrospective legislation—so I support Motion A.
Lord Garnier (Con)
Lord Ponsonby of Shulbrede (Lab) There has been a spirit of consensus on parts of this Bill, particularly those concentrating on court procedures. I thank the noble and learned Lord’s predecessor, the noble Lord, Lord Wolfson, for numerous discussions about court procedures and how they might be monitored and improved. That is not a point of contention we are considering today. I start with Motion A and the amendment to it, Motion A1, from the noble Lord, Lord Marks, on Clause 1 of the Bill. Yesterday the Government accepted the amendment in the name of the noble Lord, Lord Anderson, which would do away with the presumption that quashing orders would be prospective. As my honourable friend said yesterday, this “extracts the worst of the sting in clause 1”. —[Official Report, Commons, 26/4/22; col. 604.] I congratulate the noble Lord, Lord Anderson, on this achievement. It is in the spirit of recognising this compromise and move by the Government that, while we are sympathetic to Motion A1, in the name of the noble Lord, Lord Marks, we would not support it if it were pressed by the noble Lord. In Motion B, on Clause 2 of the Bill, the Government propose that the House do not insist on its Amendment 5, in the name of the noble and learned Lord, Lord Etherton. The amendment would have retained Cart reviews in the High Court and Court of Session in limited circumstances. I understand the noble and learned Lord will not be revisiting this issue, and we will not oppose the Government’s Motion. For the avoidance of doubt, I should make it clear that we see no purpose in Clauses 1 and 2 of this Bill. It would be our preference to remove these clauses from the Bill in their entirety, but we recognise the votes yesterday and we will not be opposing the Government’s Motion. I now turn to the Government’s Motion C and my amendment to it, Motion C1. The original amendment in my name ensured that bereaved people, such as family members, would be entitled to publicly funded legal representation in inquests where public bodies, such as the police or a hospital trust, are legally represented. The original amendment in this House was won with a handsome majority. The purpose of the amendment was to achieve an equality of arms at inquests between bereaved people and state bodies. This is an issue not just of access to justice, but of fairness. How can it be right that state bodies have unlimited access to public funds for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowd- funding? This fundamental point was acknowledged and agreed with yesterday by Sir Bob Neill, chairman of the Justice Select Committee in the other place. The reason given by the Government for objecting to this amendment was that it would involve a charge on public funds. I acknowledge that point and the amendment now asks for a review. I also acknowledge the point that the noble and learned Lord made—that that is not the sole reason for the objection to the amendment in my name. Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. This is a long-standing issue which, to be fair to the Government, as we have heard today, they acknowledge there is more work to be done on. I have had a number of meetings with the Minister and his colleague Mr Cartlidge. Unfortunately, we have not reached an agreement on this matter, although I thank them for the efforts that have been made. I want to run through the arguments they advanced during our meetings. First, as the noble and learned Lord has said, there is a means test review under way. The Government’s argument is that by highlighting one particular group—namely, bereaved families—it would raise expectations for that group and that may not be fair to that group while the review is under way. 16:45:00 The second point which was made to me is that other groups which are being considered within this general review of legal aid may feel disadvantaged if a spotlight is shone on this particular disadvantaged group. That was the essence of the arguments that we had in our discussions. I have to say that that is a weak argument. The Ministry of Justice—indeed any government department—is well used to managing expectations, and managing competing claims for public funds. It is what it does every single day. We are suggesting to recognise the strength of feeling through a multitude of family groups, well-established pressure groups—not least Inquest—through well-established bodies and indeed through what the Government themselves have said in acknowledging that this is a real issue. We therefore have an opportunity here today to press home the view which this House took on Report with a handsome majority, to ask the Government to think again and to put in place a review of the funding for these families so that there can be a sense of fairness in coroners’ courts, where many people feel they are not getting a fair hearing or a fair crack of the whip.
Lord Stewart of Dirleton (Con) On the point just taken from the Opposition Front Bench by the noble Lord, Lord Ponsonby, I reiterate my point. I accept all that he said about the impact of inquest proceedings on families and the well-expressed and carefully considered arguments advanced by family groups and pressure groups, and in this House and in the other place. However, I return to the central point, which is that in light of the review procedure put forward by the Government—a review published on 15 March that is to be followed by a full consultation, after which the Government hope to publish a consultation response in autumn 2022—I urge the House to take the view that the amendment the noble Lord proposed from the Front Bench is premature. On the point taken by the noble Lord, Lord Marks, I am happy to reiterate what I said about the nature of the ouster clause in these proceedings, in the manner in which it has been formulated, in the hope that what I have said from the Dispatch Box indicates that the Government treat this as a particularly focused instrument. I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, speaking as he does with particular knowledge of these matters, having sat in the Cart hearing itself. I accept and adopt respectfully his confidence in the ability of our judiciary properly to use the tool in the judicial toolbox—the club in the judicial golf bag—which the Bill seeks to give. In those circumstances, I return to my invitation to the House to accept the Bill as received from the Commons. I express my gratitude to all noble Lords who have contributed today, who have courteously and thoughtfully engaged with me and, for that matter, the Minister in the other place. On behalf of my noble friend Lord Wolfson of Tredegar, who of course carried out the bulk of work on this measure, I thank noble Lords for their thoughtful engagement with him, in the course of his stewardship of the Bill in your Lordships’ House.
Lord Mackay of Clashfern (Con) This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid. Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides. Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.
Viscount Hailsham (Con)
Lord Marks of Henley-on-Thames (LD) I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments. At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1. Motion A1 (as an amendment to Motion A) withdrawn. Motion A agreed. Motion B Moved by
Lord Stewart of Dirleton 5A: Page 4, line 2, leave out “passed without” and insert “the Bill for which would not require”
Lord Stewart of Dirleton (Con) Motion B agreed. Motion C Moved by
Lord Stewart of Dirleton 11A: Because it would involve a charge on public funds, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.
Lord Stewart of Dirleton (Con) Motion C1 (as an amendment to Motion C) Moved by
Lord Ponsonby of Shulbrede
11B: Insert the following new Clause—
Lord Ponsonby of Shulbrede (Lab)
Division 1 Motion C agreed. |