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We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or similar issues. Please note that decisions on amendments do not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment takes place when we come to the clause to which the amendment relates.

The Member who has put their name to the lead amendment in the group is called first. Other Members are then free to catch my eye to speak on any or all the amendments within that group. A Member may speak more than once in a single debate. At the end of the debate on a group of amendments, I shall again call the Member who moved the lead amendment. Before they sit down, they will need to indicate whether they wish to withdraw the amendment or to seek a decision. If any Member wishes to press any other amendment in a group to a vote, they need to let me know, please.

Clause 1

Quashing orders

I beg to move amendment 12, in clause 1, page 1, line 8, leave out from “order” to the end of line 9.

This amendment removes the statutory power for courts to award prospective only quashing orders and preserves the status quo in relation to the retrospective effect of quashing orders.

With this it will be convenient to discuss the following:

Amendment 35, in clause 1, page 1, leave out lines 10 and 11.

This amendment removes the ability to make a suspended or prospective-only quashing order subject to conditions.

Amendment 40, in clause 1, page 1, leave out lines 15 to 18.

See explanatory statement to Amendment 12.

Amendment 41, in clause 1, page 2, line 2, leave out “or (4)”.

See explanatory statement to Amendment 12.

It is a pleasure to be here under your chairmanship this morning, Sir Mark. I hope that we will have some interesting debates over the next few weeks. I also welcome the Minister to the first Bill he is to take through the House. I will also mention—[Interruption.] I was going to mention my own side, but they seem to have temporarily left the room for urgent Chamber business. I will not take that personally—not at this stage. In his absence, however, I am grateful to my hon. Friend the Member for Stockton North, who as shadow Courts Minister will lead for the Opposition on much of part 2 of the Bill. Like most Justice and Home Office Bills, this is a bit of a Christmas tree Bill—we are getting near to Christmas—so while I will lead on part 1, on coroners and employment tribunals, I am grateful for his expertise. I am also grateful to my hon. Friends the Members for Lewisham East and for Liverpool, Wavertree, who are current or former members of the Select Committee on Justice, and to my hon. Friend the Member for Blaydon, who keeps us all in order.

The Conservative members of the Committee are all here, I think, except for the right hon. Member for South Holland and The Deepings. I am wearing my intermediate glasses, which means I cannot see anything close up or far away. We did not hear a great deal from the Conservatives in the evidence sessions. Other than the right hon. Gentleman, they kept their powder fairly dry, but I will try and provoke them to more animation today.

Amendment 12 seeks to excise the most obnoxious proposal in part 1 of the Bill: prospective-only quashing orders. To give some context, the Government will present the Bill as a moderate, reasonable adjustment to the art of judicial review—no more than a rebalancing. The right hon. Member for South Holland and The Deepings gave some cover to that in his questions and comments in the evidence sessions. I do not want to put words into his mouth, but he suggested that it was a rather milk-and-water Bill and could go much further in reigning in judges to allow Parliament freer expression, if I understood him correctly. I disagree. I think that the Bill is a misreading of the purpose of judicial review and has an unhealthy focus on the constitutional periphery of its operation, rather than the practical effect it has on asserting the rights of the citizen against the state.

Would the hon. Member not accept, however, that in the 2019 election those of us on this side of the House stood on our manifesto that said we would look to reform judicial review? The Bill has not just been brought forward; my electorate in Burnley explicitly voted for it because they had seen the chaos in the 2017 to 2019 Parliament.

I always defer to the electorate of Burnley, all of whom, I am sure, had a copy of the Conservative manifesto. I will come back to the hon. Member’s question, because I first want to give some context around the recent history of how we got to this Bill.

We took evidence from a large number of very senior experts. Even the Government-invited experts, if I may call them that, did not really agree with the Government’s view either—not even Professor Ekins, who had innumerable suggestions for other interventions by the legislature to reverse individual decisions but did not suggest codification or enshrining judicial review in statute, which this Bill does not seek to do. We disagree that the Government have been restrained or that the Bill needs more heft, either around the doctrine or individual case examples. We think it already goes too far.

We will argue today in Committee that prospective-only quashing orders strip claimants of their right to remedy and make the unlawful lawful. That presumption is in favour of suspended quashing orders, prospective-only quashing orders, fettered judicial discretion, and, in effect, a judicial process with heavy-footed statutory direction. The collateral damage caused by this interfering with a well-understood process of defining the legal limits of state actors will cause unintended victims and create more uncertainty and satellite litigation.

On clause 2, we will also argue that the use of ouster in Cart/Eba cases will not only leave very vulnerable persons in danger, but will open the door to more frequent incidents of legislation ousting the jurisdiction of the High Court, using the Bill as, in the Government’s own words, a template for further ouster clauses.

I am extremely grateful for the help and suggestions on how to structure these comments—from the Clerks for the way they group and help perfect the amendments, to the House of Commons Library for its excellent briefings and the many organisations for who sent us their thoughts. They are too numerous to name them all, but I must mention those that gave evidence on Tuesday: Liberty, Justice, Public Law Project, The Law Society and Amnesty International UK—all well known in the field of administrative law and human rights. We also received briefs from environmental, educational, equality and immigration non-governmental organisations and charities.

I mention that because the thrust of many of the arguments against the Bill are that it limits the ability of civil society in all its forms and of the individual to challenge the state. That is important because the attempt to characterise judicial review as the creature of lawyers and lefties, which to this Government appear to be two sides of the same coin, could not be further from the truth.

Judicial review is simply the modern name for the centuries-old common-law supervisory jurisdiction of the superior courts to ensure that decisions of public authorities, including statutory tribunals, respect the limits on their powers that are imposed by law. The existence of the courts’ common-law jurisdiction makes it possible for a person to go to court and argue that a decision or action of the state was unlawful. The court can rule that the decision or action was unlawful if it was illegal, irrational, tainted by procedural impropriety or a disproportionate interference with a fundamental right. It is one of the most fundamental checks and balances within the UK constitution to ensure that public authorities act fairly and in accordance with the law. It also gives individuals a route to challenge officialdom where it may have overstepped its powers.

To quote the right hon. Member for Haltemprice and Howden (Mr Davis), as I may do on more than one occasion:

“Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.”

Some of the framework rules for judicial review are set out in the Senior Courts Act 1981, but it is important to appreciate that the courts’ power of judicial review is not something judges have been given by Parliament, but an inherent common-law jurisdiction dating back centuries to when the courts first began holding power to account. Therefore, much of the content of these rules are spread across these different cases.

If a court finds that the decision or action was unlawful, it will make a declaration to that effect if it is just and convenient to do so. It has the power to make three specific orders: a mandatory order, which orders the state to do something; a prohibiting order, which prohibits the state from doing something; or—relevant to these discussions—a quashing order, which rules that a thing done by the state is void and has no legal effect. On the other hand, a declaration is simply a formal statement setting out the legal state of affairs. We will see the importance of that when we talk about suspended quashing orders later on. A declaration is non-executory in the sense that it does not command anyone to do anything; it simply declares what the legal position is.

A quashing order is different as it is executory: it orders something concrete and has legal consequences. A quashing order rules that a decision was void and therefore has no effect. Rather than simply declaring, for example, that a planning decision was unlawful, a quashing order would quash that decision meaning it has no continuing effect and has never had any effect from the moment it was made.

The long-established default position in judicial review cases is that where unlawfulness has been established, for example because a public authority has acted beyond its powers, a declaration is insufficient and one of the specific orders must be given. According to Lord Bingham, speaking in a judicial capacity, under the rule of law

“the discretion of the court to do other than quash the relevant order or action where such excessive… power is shown is very narrow.”

The Bill is not the first time in recent years that a Conservative or coalition Government have sought to rein in judicial review. Between 2010 and 2015, various proposals were consulted on and legislated for. In particular, in 2013, changes to the civil procedural laws reduced time limits for bringing claims in planning and procurement cases, introduced new fees and denied some renewed hearings. The Criminal Justice and Courts Act 2015 introduced provisions on leapfrog appeals, wasted costs orders and the refusal of some remedies.

However—interestingly—the most controversial proposals on legal aid and standing originally designed to be in that Act were not pursued. It was a case of rhetoric meeting the practice of the courts and the former withering in the gaze of the latter. Perhaps that will happen again with these proceedings—in the other place if not here—because we are again in the territory of crowd-pleasing rhetoric, or Back Bencher-pleasing rhetoric, coming under scrutiny.

Can my hon. Friend think of any reason why a Government or any other body should be afraid of the judicial review process if they think that they got it right in the first place?

I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.

People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?

Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?

I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.

The hon. Gentleman seems to be putting forward a narrative whereby people listening to these proceedings, who do not know what is going on, might think that judicial review is going away somehow. Actually, that is not what will happen as a result of the Bill; it seeks to continue the evolution in ensuring that judicial review is used proportionately. Will the he confirm my understanding that judicial review will still be available for people who want to challenge Government decisions? It is really important that the general public do not think that a potential remedy is disappearing.

The hon. Gentleman is being very sharp this morning, because he is always one point ahead of me. I am coming to exactly that in discussing how these provisions were formulated, and I accept entirely what he says. The Bill could have gone a lot further, and there were proposals to go further in the Government’s consultation, but that does not mean that there are not significant changes in the Bill. I do not agree that it simply tidies things up or that the changes are a logical progression, and I will try to persuade him of that slowly but surely.

Under the Bill, claimants and others affected by unlawful decisions made by the state could find that they win their case but get no proper remedy and see no real impact on their lives, or on the lives of anyone else who has been negatively affected. If I am right about that, it is a significant change. On the hon. Gentleman’s point, we were promised—I think in the same 2019 Conservative manifesto—overarching constitutional reviews of criminal law and democracy, but they have not materialised. It may be that wiser heads have prevailed, but it may also be that rather more quick and dirty results are being demanded.

The Government have opted instead for a series of reviews. In this discipline, the independent review of administrative law was established under Lord Faulks. It asked whether judicial review was being abused by creating needless delays and allowing political matters to be litigated through the courts. There was concern from many in the legal community that the review would lead to the courts being sidelined and the Executive being granted too much power without enough accountability. However, IRAL’s recommendations were mainly practical and incremental, and they did not contain the radical proposals that some had feared.

The panel was against codifying the grounds for judicial review. It thought that ouster clauses were appropriate only in limited circumstances, and it disapproved of prospective-only quashing orders. Perhaps for that reason, the then Lord Chancellor took the two IRAL recommendations that he liked—on suspended quashing orders and on reversing Cart—and conducted his own consultation. The consequences of that second bite, or some of them, are in the Bill, though it still has too little red meat for some people. The Bill proposes a range of further reforms that risk weakening the rule of law and narrowing access to justice for vulnerable people.

Clauses 1 and 2 seek to limit the vital check on Executive action and create a statutory presumption that remedies available in judicial review should be suspended or made prospective-only. Clause 1 gives judges the power to issue suspended and prospective-only quashing orders, the latter of which would prohibit future unlawful decisions without invalidating any prior actions based on that decision. The Bill undermines accountability and creates additional and unnecessary barriers to individuals seeking redress when they are affected by unlawful actions of public authorities.

Does my hon. Friend agree that removing retrospection could mean illegal acts are thus made legal, and that there is very little remedy for those who seek recompense?

My hon. Friend has put her finger on the main objection, but it is not the only objection. It will cause a great deal of confusion, and I do not think the courts will like it. They will therefore try to find ways around it, as courts tend to do in such circumstances, and there will be uncertainty over whether something was lawful, and whether it was lawful for all purposes. Again, I will come on to those issues, but this just opens cans of worms. The Government also assert that this is a simplifying and clarifying measure, but it will have exactly the opposite effect.

I take issue with the hon. Member’s characterisation of how the courts may work under the new jurisdiction of the Bill, when it is enacted. He also mentioned the expert advice that we heard the other day. Jason Varuhas, professor of law at the University of Melbourne, stated:

“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.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 10, Q6.]

I am not persuaded by that. I do not want to disagree with the eminent professor, but I am tempted to say, “Two professors, three opinions”, and we had at least six professors. I thought it interesting that they did not all say what I expected them to say. There was some disagreement. The civil liberty organisations did not agree on everything—some supported the suspended order and some did not. I thought the openness of the first panel on that was quite refreshing. It is true that there are views on both sides, and that will always be true.

In the passage that the hon. Gentleman read out, I specifically disagreed with the idea that the Bill gives judges more power and discretion. In a literal sense, if we give someone a new type of order, we could say, “That has given them a wider range of options”. If we constrain how they can use those orders or we give them orders that they have not sought, however, it has exactly the opposite effect. We should be securing fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect this country’s international reputation for upholding and promoting the rule of law, not precluding practical access to public law remedies.

Unless the Bill is amended as we suggest, it will negatively affect the ability of ordinary people to hold the Executive to account and safeguard their own rights. That is the other side of the coin. We are, of course, interested in the respective powers and the balance between Government and the courts, but we are also very concerned—sometimes more so—about the individual citizen’s rights and their ability to get redress. Our laws and legal processes allow ordinary people to challenge Governments and public authorities when they get it wrong. They help us stand up to people in power. We all deserve effective access to justice and a fair hearing. Judicial review is a vital and necessary tool for good, effective and accountable policy making by Government and public bodies, and it is hobbled by this Bill.

Currently, if a claimant wins their case and succeeds in showing that a decision was unlawful, there will be consequences for the public authority. If the claimant was directly affected, that also means justice, in some form, for them and potentially for others affected by the decision. They benefit because when the court delivers its judgment that the decision that is being challenged was unlawful, it means that the decision was invalid and will need to be remade. The normal outcome of a successful claim that the state has acted unlawfully is that the court will confirm its conclusion by issuing an order stating that the state’s decision is quashed. That is a normal remedy for the wrong that has been done. The public authority must face the consequences of its unlawful actions, such as by retaking the decision or deciding it differently, and the claimant benefits from that happening. Sometimes they may also get some other form of remedy, as a result of the recognition that what happened should not have happened.

If the claimant was not affected by the unlawfulness themselves, others will usually have been, and they may also benefit from the judgment and the order. If the policy is found to be unlawful, anyone affected by it will benefit from that finding. The use of our judicial review powers has helped to ensure that equality and human rights law are respected, prompting positive changes in policies and practices. Many public bodies are subject to judicial review claims, and the prospect does not hinder good work, but rather helps to ensure that compliance with the law and good practice are at the forefront of decisions.

Under clause 1, the outcome could be that even when a claimant wins their case, they will not get any benefit; they will be in the same position as when they brought the case. The same will apply to anyone else who has been negatively affected—nothing will change for them.

In his evidence to the Committee, Sir Stephen Laws said:

“In my submission to the independent review of administrative law I drew attention to what I thought were the beginnings of a breakdown in trust between the political world and the judiciary, and the political salience of the issues around judicial review is evidence of that.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 14, Q8.]

Does my hon. Friend agree that it is lamentable that even those who were called by the Government to give evidence have reservations about current relationships between the courts and politicians, and how they could be worsened in future?

It is not unique to this Government to be found wanting or to be challenged by the courts in such a way. Other Governments have not found favour with the courts and may have resented their intervention, but on the whole those Governments have sucked it up, if I can put it that way. However, this Government seem to take the view—we have recent evidence of this—that if they do not like the way that proceedings are going or tribunals are conducted, they can simply change the rules or change the tribunal.

I agree with my hon. Friend. I do not want to be overly dramatic, but these are worrying times. The Ekins view, which I described in the evidence sessions as tit for tat—a decision is taken and if the Government do not like it, they have a ready-made power to change it—is bad enough, but tinkering with the court process is worse.

There was much discussion in the evidence sessions about tit for tat, or whichever expression one wishes to use, and it is lamentable. Surely the Government have always been able to address issues that have embarrassed them, and they do not have to take this broad-brush approach to negate that possibility in the future.

Much of the evidence suggests that the public are quite sophisticated about this. They see that all Governments make mistakes, get caught out and have to change their minds. In the end, the public make a judgment about a Government’s overall record. It is quite wrong for Governments to be, as this one is, so thin skinned that any criticism requires not just a response but, effectively, a punishment of the person or body who does the criticising.

What are the consequences of the changes that clause 1 of the Bill makes to the Senior Courts Act 1981, to provide for quashing orders either not to take effect until a specified date or to come into force without any retrospective effect? As has been said, the usual practice is that the quashing order comes into force immediately and operates as if the decision that has been ruled unlawful had always been null and void. Remedies in judicial review are discretionary and will often result in a declaration that the act was unlawful, with remedial action left to the public body. However, when a court decides to issue a quashing order, it is right that the unlawful decision should stand no longer and that those affected should have proper redress. Because a court can make this remedy after finding that a public body acted unlawfully, the quashing order renders the unlawful act null and void; the act never had any legal effect, and therefore its consequences must be unwound.

Whereas quashing orders have hitherto been made by the courts to confirm that a decision by a public body is of no legal effect, the Bill provides that the effect of such orders may be suspended until a prescribed time, potentially subject to conditions—temporarily validating a decision that has been judged unlawful. In deciding whether to suspend an order or make it prospective-only, the courts must have regard to a range of factors, including any detriment to good administration that may arise from its decision. The Bill requires a court that has decided to make a quashing order to suspend the order or to limit its retrospective effect if doing so offers

“adequate redress in relation to the relevant defect”,

unless the court

“sees good reason not to do so.”

Thus clause 1 would limit the effectiveness of quashing orders.

The quashing order is a powerful tool that ensures that unlawful Government decisions can be overturned, and that those who have suffered the consequences can obtain real redress. The courts have the power to suspend the effect of quashing orders, although the power is rarely exercised. Although the case law on this is not absolutely certain, it is reasonable to argue that courts already have this power. Suspension operates like a time lock on the unlawful action, meaning that the court can delay the effect of its ruling and give the public authority time to sort out its mistake. Limiting the retrospective effect ensures that the remedy has effect only on the date that it is made, rather than affecting things that have already been done. If the court suspends the quashing order or makes it prospective-only, things done before the suspension or things done in the past are treated as if they are valid. The current law strikes the right balance in reserving this remedy for exceptionally rare cases.

As I have said, it is important to remember that all remedies in judicial review are discretionary. In exercising their remedial discretion, the courts will consider a range of factors and will take into account the impact of quashing on certainty and the needs of good public administration. Where significant administrative disruption or chaos could result from a quashing order, the courts have the power to issue a declaration instead, and they often do. Often, the court will simply make a finding that a public body has acted unlawfully and leave it to the public body to determine what action should be taken in response to that finding.

Research by the Public Law Project shows that, in challenges to statutory instruments, a declaration rather than a quashing order is the most common remedy following a successful judicial review. That practice shows that the courts deal very well at the moment with all those circumstances, and it calls into question the need for clause 1. In any event, there are already limitations on a court’s ability to grant quashing orders. For example, section 31(2A) of the Senior Courts Act 1981 requires the High Court to refuse a remedy if it appears

“highly likely that the outcome for the applicant would not have been substantially different”

if the public authority had not acted unlawfully, unless there are

“reasons of exceptional public interest.”

Section 31(6) of the same Act also allows the Court to refuse relief on the grounds of undue delay

“if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Claimants’ access to quashing orders is therefore already strongly regulated. However, an immediate and retrospective quashing order is an important tool for righting injustice and ensuring that the Executive acts only within its legal powers. Combined with the existing controls on quashing orders, the proposed reforms weigh the scales of justice too heavily in favour of the Executive. Prospective-only quashing orders would invalidate an unlawful act only from the point of the court order onward, leaving past conduct, including conduct complained of by the claimant, untouched.

Clause 1 goes significantly further than the recommendations made by IRAL. The IRAL panel recommended legislating for a discretion to make suspended-only quashing orders. It did not recommend legislating for prospective-only quashing orders, and it recommended against a presumption of limiting the effects of a quashing order in this way. Subsection (9) of proposed new section 29A, inserted by clause 1, creates a presumption that these weakened quashing orders “must” be made where to do so would provide “adequate redress”—absent good reasons. Such a presumption not only goes against the Government’s stated intention to provide flexibility for judges, but risks encouraging the use of these new orders in circumstances where it would be unjust and unfair to do so. As the Government acknowledge in their consultation response,

“Presumptions were not recommended by the IRAL Panel and generally met with scepticism from respondents to the consultation.”

However, it does not appear to have had any effect.

Suspended and prospective-only quashing orders undermine the rule of law, which requires that no person should be subject to unlawful action and that individuals have access to an effective judicial remedy against unlawful measures. Article 13 of the European Convention of Human Rights further protects people’s rights to an effective remedy. Although the Bill requires that the court considers whether a provision offers adequate redress before making a suspended or prospective-only quashing order, it does not preclude the possibility of an order being made without adequate redress. We are concerned about the potential for suspended or prospective-only quashing orders to impact third parties affected by an impugned human rights or equality decision and the implications for their ability to access legal aid. It is unclear whether cases likely to result in suspended or prospective-only orders would meet the test of sufficient benefit to the individual, and therefore justify a grant of legal aid.

Most concerning of all is the prospect that either or both types of orders could be mandatory for the judge, as the clause contains an apparent presumption that they will be made where there is “adequate redress”. The Bill does not specify who for, but one of our amendments deals with that. The Bill as it stands will reduce judicial discretion to give an appropriate remedy. I will say more about that later.

Clause 1 risks undermining individuals’ ability to hold the Government to account. The provision could also mean that individuals are found guilty of offences made under unlawful regulation or are unable to be compensated for the impacts of unlawful state action. The point of judicial review is to ensure good decision making by public bodies. It is concerned not with the result in itself, but that the right procedures are followed and that the body is operating within the law. Within the separation of powers that forms our political system, it is an important check by one branch on another, acting in the interests of the public. The Bill does nothing to improve the decision making of public bodies; in many ways it will have the opposite effect. Making challenges harder to bring and remedies less effective may make things easier for Government, but at a cost to the general public.

I will give two or three examples of previous cases. I remind the Committee that the Government’s own election manifesto promised to

“ensure that judicial review is available to protect the rights of the individuals against an overbearing state”

and to secure access to justice for ordinary people—laudable aims. These new remedies will not, however, uphold that promise. I will demonstrate that with a short synopsis of some case studies.

In the case of the British Medical Association, the Health Secretary issued the National Health Service Pension Schemes, Additional Voluntary Contributions and Injury Benefits (Amendment) Regulations 2019, which tried to introduce a power to suspend or withhold payments of NHS pensions, where an employee had been charged with an offence. There was no right of appeal from that power, and the suspension did not come to an end when the employee was acquitted or where proceedings were withdrawn.

At the time of the case, that power had never been exercised. The British Medical Association brought the case as a matter of principle: that potentially innocent medical staff could be denied a pension simply for being charged with an offence that they did not commit. Finding the regulations to be unlawful, the judge granted a quashing order.

Given that the case did not relate to an actual use of the power or an individual who was a victim of the power, the judge might have regarded a suspended or prospective-only order as adequate, meaning that under the Bill, the judge would have been expected to suspend the effect of the order or make it prospective-only. However, in the time that it took the Health Secretary to consult on the draft and lay new regulations, there would have been nothing to prevent Ministers from exercising the unlawful powers, as doing so would have been valid under proposed new section 29A(3) to (5) of the 1981 Act, which makes otherwise illegal uses of power legal.

My hon. Friend is giving a series of good examples as to why the Government’s proposals are flawed. In his evidence to the Committee on Tuesday, Dr Morgan said:

“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.”

He went on:

“I also think, if subsection (9) is taken out, subsection (8) could be taken out as well.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 24, Q23.]

So there is clearly support for the line that my hon. Friend is taking.

I am grateful for that quote from Dr Morgan, which is far more learned and eloquent than anything I can come up with. His evidence was very measured and showed nothing other than looking at the Bill with a fresh pair of eyes. On some of the decisions he supported the Government, and in some cases he could not see any point or purpose.

There is grave concern about the impact of any changes to the law of judicial review on children and young people with special educational needs and their families. Children and young people with special educational needs often rely on legal remedies such as judicial review to ensure that they receive the special educational provision and wider support to which they are legally entitled. Judicial review is an essential remedy in cases where there is no other way that a complaint can be resolved—for example, by complaining directly to the public body concerned or the local government and social care ombudsman. Any changes to the law on judicial review should take account of the particular factors relating to children and young people with special educational needs.

I will give a few examples of situations that arise quite commonly; Members may well have been involved in some such cases. Local authorities may fail to comply with statutory timescales for issuing or amending an education, health and care plan for a child or young person, resulting in the child or young person missing special educational provision or schooling. A local authority may fail to make the provision set out in a child or young person’s EHC plan, resulting in the child or young person missing education; fail to comply with the order of the first-tier tribunal; or decide to stop providing the home-to-school transport to which a child or young person is entitled, meaning that they cannot get to their place of learning. A school governing body may refuse to admit a child or young person despite the school’s being named in the child’s EHC plan, where there has been no formal exclusion. Those are just a few examples of how judicial review can be used to ensure that children and young people receive the special educational provision and support to which they are entitled by law. It is essential that it remains a meaningful option for them and their families.

The measures, if enacted, will weaken the effectiveness of the remedies available to the courts and will deny an essential remedy to children and young people with SEND and their families. The Bill will deter people from using judicial review as a way of righting unlawful decisions by public bodies. Any change to judicial review should encourage access to justice, not limit it. It will also limit claimants’ access to legal redress for unlawful actions, which will take away any accountability of Government or agencies for unlawful action that has already taken place.

I will make some very specific comments on the first group of amendments. The lead amendment is amendment 12, which is the only one I will press to a vote. Amendments 40 and 41 are contingent on amendment 12.

Proposed new section 29A(1)(b) of the Senior Courts Act 1981 allows for quashing orders to be made including provision

“removing or limiting any retrospective effect of the quashing”—

in other words, a prospective-only remedy. For prospective-only orders, despite a state decision or action’s being found unlawful, the order quashing it would be forward-looking, leaving the individual who brought the case without proper redress for what has already happened to them and, potentially, with no change in their circumstances at all.

Proposed new subsections 29A(4) and (5) set out the implications of that change. The decision or act in question is to be treated as valid and

“unimpaired by the relevant defect”,

for all purposes, for the period of time before the prospective effect of the quashing order. As has been expounded countless times by the courts, the rule of law requires that those exercising public power should do so lawfully. However, the Government would be under absolutely no legal duty to address the injustices caused by the unlawful measure, and there would be no scrutiny as to the effectiveness of such remedies. We do not consider that to be an appropriate or principled solution.

In issuing a prospective-only quashing order, the courts would be determining that an unlawful measure should be treated as if it were lawful retrospectively, which is problematic for many reasons. First, it undermines the rule of law, which at its core dictates that all are subject to the law, that no person should be subject to unlawful action, and that individuals have access to an effective judicial remedy against unlawful measures. Prospective-only orders entail a direct rejection of those principles, allowing unlawful executive acts to stand and, therefore, preventing individuals who were previously impacted by them from challenging them. As recognised by the consultation, that could lead to severe unjust outcomes. By introducing prospective-only remedies, the Government are making another concerted effort to insulate themselves from accountability at the cost of those who have been let down by a public body and anybody who may be in the future.

Prospective-only remedies have the potential to create opportunities for injustice in individual cases, to weaken the rule of law and to introduce unnecessary layers of complexity into an already functioning system. This is another example of the Government wasting time and resources on fiddling with an area that works well, while many other areas of the justice system cry out for attention.

Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.

Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.

In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.

The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.

The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.

I refer to the evidence submitted by the Independent Provider of Special Education Advice on the impact of the changes on those with special educational needs, highlighting the importance of the ability to appeal at that level. When we look at the effects on individuals and organisations, rather than the dry words, does my hon. Friend agree that this change could have a significant impact on those people who feel that they are not getting justice and are seeking redress?

I am grateful for my hon. Friend’s intervention, and I think she is following my argument. What I am trying to do through a series of case studies—some hypothetical, some that are likely, and some that have actually happened—is look at how those cases could have been different had this piece of legislation been in effect, specifically looking at the effect on individuals. That may be hundreds or thousands of individuals, or it may be one individual, but these are often people for whom this is the only form of redress, and it is hard to see how a prospective-only remedy would provide a just outcome to an individual claimant.

Turning back to the Unison case, it arbitrarily distinguishes between people who have been impacted by the unlawful measure before and after the court judgment, undermining certainty, consistency and equal treatment under the law, which was the point of my hon. Friend the Member for Lewisham East. Individuals who have not litigated but who are impacted by an unlawful measure have just as much need of the law’s protection as those individuals who will potentially be impacted in the future. Some unfortunate people would be denied justice, with no proper remedy even when the court said they were right.

Looking at the position in other jurisdictions, it is notable that courts are usually prepared to hand down a prospective remedy only in cases of constitutional importance, or cases that would have serious economic repercussions for a large number of good-faith relationships. In practice, that happens extremely rarely, and those are very limited categories that have been carefully contained on the basis of subtle judicial reasoning and incremental developments.

The European Court of Human Rights has also held in a very clear judgment that certain remedies which have prospective-only effect cannot be regarded as effective, and therefore would be a violation of article 13 of the European convention on human rights. Judges already have discretion over what remedy to give, but this Bill will increase their focus and attention on limiting the use of full quashing orders and mandate the consideration of factors that undermine successful claimants’ legitimate interests. It will embolden defendants who are found to be on the wrong side of the law to argue that they should not suffer the full consequences of their unlawful actions. Public trust in the system will be undermined where judges are seen to validate or immunise previous unlawful conduct through prospective-only remedies. That, in turn, may disincentivise legal compliance by those in power.

The Government line is that judges are sensible and will strike the correct balance in practice, but that is cold comfort for individual claimants and is not in compliance with international law. In creating a statutory presumption and mandating consideration of these new remedies, judges are being clearly signalled to, and may well be less likely to—and, in fact, may be required not to—award effective remedies for claimants against any common-sense understanding of justice.

The result of limiting retrospective effect would be that a claimant could have the court agree that the decision made by the Government or public body was unlawful, but would not have recourse to a retrospective remedy. That would allow the Government to avoid having to compensate people who are victims of its previous unlawful behaviour. If claimants know at the outset that it is likely that they could win but nothing would happen, why bother going for judicial review at all?

The group that trades under the name Equally Ours, which briefed us, has significant concerns about the likely effect of deterring people from seeking judicial reviews if this clause is unamended. If prospective-only remedies are applied, the effect would be that unlawful decisions or actions would be treated as lawful until the quashing order came into effect. Retrospective quashing orders recognise the unlawful decision or action and provide a remedy.

Bringing a judicial review has many disadvantages to applicants, not least the cost, uncertainty and length of the process. The key motivation for many applicants—for the impact on them to be remedied—will be lost if a prospective-only order is made. With that in mind, it appears likely that the introduction of prospective-only remedies would have a chilling effect upon future potential claimants. With their use not only allowed but encouraged, that sends a strong signal to an individual who has been wronged by a public body that their actions are not worth challenging: even if they win, their situation may not improve.

I would like to draw my hon. Friend’s attention to the evidence of Louise Whitfield, who stated:

“If you go down the road of these reforms and make remedies harder to get, and there is more opportunity for public bodies to put off the day of giving in—or to know that even if what they have done is found to be unlawful, they will not have to address the wrongs that people have suffered previously—that will just make it harder for individuals to use judicial review effectively. That can only be a bad thing.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 51, Q72.]

Does my hon. Friend agree that clause 1 seeks to stifle people’s access to justice?

I am grateful for that intervention, and I hope from what I have said, and from many of the interventions by hon. Friends, that it is clear that what we are most concerned about here is the impact on an individual claimant.

Bringing judicial review is not an easy thing to do; it is not a common remedy. Funding it, finding representation and getting into court are all difficult. I hope when the Minister responds—I do not have much more to say before I will allow him to—he will address some of those points, particularly in relation to what he thinks the effect of the measures in clause 1 of the Bill will be on individuals who currently have the ability to bring a successful claim.

As I said, a chilling effect seems likely. If these measures are not only allowed but encouraged, that sends a strong signal to an individual who has been wronged that the actions are not worth challenging. Even if a prospective-only quashing order is not used in a particular case, its mere availability would serve as a serious disincentive to claimants seeking to bring a judicial review if a claimant cannot be sure that they will benefit from the judicial review even if it is successful.

A further financial hurdle could be placed in front of potential claimants as legal aid would likely become even harder to obtain. Applicants for legal aid must be able to demonstrate that there would be a tangible benefit to the litigant if successful. It may become difficult to satisfy this requirement where the litigant stands a high chance of being awarded a prospective-only remedy, meaning that more prospective applicants could be denied legal aid, forcing them to abandon their claim.

With no legal aid and little prospect of benefiting even if successful, there is seemingly little incentive for someone who has been negatively affected by unlawful action to bring a case. Prospective-only remedies would therefore have a serious chilling effect on the system of judicial review, disincentivising bringing a case in such a way. Moreover, they would have a damaging effect on good governance; the threat of judicial review is a powerful tool in encouraging good decision making by public bodies.

As well as depriving proper redress for individual claimants and others who may have been wronged by unlawful decisions, prospective-only remedies also have the potential to cause more general harm. The impact of a prospective-only quashing order and the transition between a measure being valid and then quashed going forward will be difficult and unwieldy to navigate, including for public bodies.

By way of example, it is unclear whether proceedings to pay a penalty notice could be brought against an individual for breach of an unlawful byelaw if the events occurred prior to the byelaw being quashed prospectively but the charges and/or proceedings are brought afterwards. The introduction of prospective-only quashing orders removes the certainty provided by the position that a measure if found to be unlawful will then be treated as such. Laws should be able to guide conduct to enable persons to be able to act in accordance with the law. A position where a measure is both recognised as being unlawful but is also to be treated as if it were lawful is contrary to this.

As one Department said in its submissions to IRAL—from those that we have been able to see—

“the rule of law requires predictable rules around which citizens, businesses and government can plan their activities and lives”.

Prospective-only remedies weaken the rule of law because they allow the Government and public authorities to act without fear of meaningful repercussions. The Government are effectively encouraged to take risks and act unlawfully, and the only consequence is that the decision will eventually be reversed should it be successfully challenged in the future. That undermines Government accountability, and in turn undermines the quality and effectiveness of decision making.

It is a pleasure to be able to follow the hon. Member. Colleagues will be pleased to know that I will be trying to hold their attention for only about three or four minutes.

I am certain that the hon. Member will have regard for the assertion by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), that the Bill is a power grab by Government. Would he not agree that that is an odd thing to say, given that the Bill provides the courts with additional powers around remedies in a way that ensures practicality and efficiency, and enables courts to give consideration to the effect of remedies in a way that is not readily applied in the current framework? That surely serves to evidence the shadow Secretary of State’s lack of understanding of what our courts actually need and of the flexibilities built into the Bill. As the Minister said on Second Reading, far from weakening quashing orders, as the shadow Secretary of State said, these new remedies

“strengthen quashing orders and thereby strengthen judicial review.”—[Official Report, 26 October 2021; Vol. 702, c. 233.]

On prospective remedies, I would like to give two examples that show that this concept is not new but has precedence in our legal system. Judges have limited the retrospective effect of quashing orders in some instances in the past, such as in R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015. Therefore, these remedies do not change the position of judges but act to encourage a wider use of the new quashing order modifications.

It is important to state that these remedial modifications are not being pursued to bypass Parliament but are in fact focused on resolving practical issues that arise during judicial review cases. The concept of prospective-only orders is not novel or unique. Under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006, courts in the devolved Administrations have a power to make such orders where decisions are outside devolved competence. The Government wish a similar concept to be available in all cases of judicial review in England and Wales.

May I point out that there is no presumption in any of the devolved legislation, and that is primarily what we are arguing about here? It is not about having the ability to do this; it is about the presumption that it has to be a default position.

Courts will none the less still have discretion, as I understand it, so they can decide, case by case, what framework they intend to follow.

These are discretionary quashing order modifications, and courts will have regard to the constitutional separation of powers. It is not foreseen that the Government will stop having to work with Parliament to pass retrospective legislation in future.

It is a pleasure to serve under your chairmanship, Sir Mark. I will—necessarily, since we are almost at the end of this sitting—keep my remarks extremely short.

I do not think anybody in this room would not trust our judiciary’s knowledge, its significant experience, or its wisdom to make sensible, measured judgments in each case. At present, a finding of an error of law nullifies the decision completely. I will give one example—there are many, but we are short of time—in which a suspended quashing order could have been useful. Despite what the shadow Minister says, it was applied for by the then Labour Government under Gordon Brown. That case, which has already been mentioned, is Ahmed v. HM Treasury (No. 2).

In that case, a number of individuals had their assets frozen because they were believed to be terrorists. The court decided that the decision to freeze those assets was unlawful, which left the Government in an invidious position, because they were concerned about the use of those assets for security. Indeed, over five days, Gordon Brown’s Government passed a law to retrospectively make that asset freezing lawful, before then passing more definitive legislation.

We do not want the Government to be put in that sort of position. Had the judiciary then been able to pass a suspended order, as the Bill proposes, it would have been able to say that the effect of the asset freezing was lawful for a period, allowing the Government to take appropriate national security measures. As others have said, the addition of a suspended quashing order means extra tools in the judges’ toolbox. It is an opportunity for our esteemed and extremely expert judges to make sensible decisions—the right decisions at the right time—for the cases before them.

If the Minister simply wants to put more in the judges’ toolkit, and does not expect a presumption in favour—or a default position, as I said earlier—will the hon. Lady support one of the upcoming amendments to stop that presumption?

I am talking here of a suspended order specifically. Personally, I would trust the judges to have the discretion to look at the case in front of them, the law as it stands and the situation in which they find themselves, and make a measured judgment. Under this clause, they have the discretion to use the orders as they see fit and proper, and I have absolute trust in our judiciary to use them properly.

Ordered, That the debate be now adjourned.—(Scott Mann.)

Before we start, may I remind hon. Members about social distancing and mask wearing where appropriate, please? We will now continue line-by-line consideration of the Bill. The selection list for today’s sitting is available in the Committee Room and shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue.

Clause 52

Mandatory referral to CMA

I beg to move amendment 28, in clause 52, page 28, line 10, at end insert—

“(c) where the granting authority for a subsidy scheme is the Government department responsible for the operation of the subsidy control regime, or

(d) where the granting authority for a subsidy is the Government department responsible for the operation of the subsidy control regime and the subsidy value is over £2 million.”

This amendment makes provision for situations for mandatory referrals in cases where the department responsible for the operation of the subsidy control regime is a granter of subsidies or subsidy schemes.

Thank you for chairing the Committee today, Chair; we very much appreciate it. I am pleased that the hon. Member for Mid Dorset and North Poole is delighted to see me here. He made very clear this morning that he was worried that the debate might be truncated without my presence. I am here to oblige by standing up and making my first speech of the day.

The amendment is about mandatory referrals to the Competition and Markets Authority. Clause 52 specifically focuses on those mandatory referrals and the criteria under which a subsidy would mandatorily be referred and therefore given an additional level of scrutiny. The mandatory referral considerations in subsection (1) of the clause say that a public authority must request a report from the CMA if it is giving a subsidy or a subsidy scheme “of particular interest” or if it is

“directed to do so by the Secretary of State”.

It goes on to say in subsection (3) that the Secretary of State may

“specify further information that must be included in a request”,

and

“make provision as to the form of a request.”

That is all well and good, but it seems to me that every single criterion for mandatory referral to the CMA relies on the decisions being made by the Secretary of State. The Secretary of State will decide what is a subsidy or subsidy scheme of particular interest and what class it falls into. That is a decision that will be made, but those details are not in the Bill.

If a subsidy is only mandatorily referred if it is of particular interest, which is defined by the Secretary of State, or if the Secretary of State chooses to refer it, there is a gap in terms of a conflict of interest, where the subsidy may be given by the Secretary of State’s Department and, given the limited criteria we have for interested parties, for example, which have not yet been expanded on—we will discuss them later on in the Bill—it would make sense for large grants made by the Secretary of State’s Department to mandatorily be referred to the CMA for a report. That would not cause a huge amount of additional work for the CMA, but it will provide an additional check and balance to the system. We do not want the Government marking their own homework on that; we would rather there was an additional level of scrutiny here.

Amendment 28 says that

“where the granting authority for a subsidy scheme is the Government department responsible for the operation of the subsidy control regime, or”—

that should be “and”, not “or”—

“where the granting authority for a subsidy is the Government department responsible for the operation of the subsidy control regime and the subsidy value is over £2 million.”

Once again, I do not feel I am being unreasonable. I am not asking for a mandatory referral every time. Sorry—I just reread the amendment, and it is right, it should be “or”. It is about a subsidy scheme that is made by the Secretary of State’s Department, so scrutinising all the subsidy schemes made by the Secretary of State’s Department, or the scrutiny of an individual subsidy where that is more than £2 million. I apologise to the Clerks for doubting them; this is how I intended the amendment to be.

This is not an unreasonable ask, but it is an extra check and balance, ensuring that the Government are appropriately scrutinised and that there is a look at all those subsidies. It is just an additional look; it will not delay the granting of the subsidy or mean that it will take longer. The subsidy will still be able to be granted fairly quickly and subsidy schemes will be able to be set up fairly quickly. However, it means that the CMA will look at those with an inherent conflict of interest because the Secretary of State’s Department is granting or setting up the subsidy scheme.

Later in the clause is a provision for the Secretary of State to make changes by regulations, but that specifically relates to the form of the request and the further information that may be included in the request. It does not relate to further criteria as to which public authorities must request a report from the CMA. If there were such a provision, I would push for the Secretary of State to make regulations and ensure that the criteria were widened. As that has not been included in the clause, I feel that I have to move the amendment.

If the Minister could give me some level of comfort, that would be very helpful. I think that that check and balance needs to be there to get rid of the inherent conflict of interest.

It is a pleasure to serve under your chairship, Ms Nokes. I thank the hon. Member for Aberdeen North for her remarks. She raises a number of important and pertinent issues around scrutiny, in particular about subsidies introduced by the Secretary of State.

The clause deals with the mandatory pre-award referrals to the CMA. It outlines that:

“A public authority must request a report from the CMA…before giving a subsidy, or making a subsidy scheme, of particular interest, or…where directed to do so by the Secretary of State”.

We have highlighted our concerns about the definitions of subsidies “of particular interest”. It is a glaring gap in our debates on the detail of the legislation. We think that the definition should be included in primary legislation, and I hope the Minister has listened to our concerns. I am sure that the issue will come back at future stages and, at the very least, our expectation will be that the definition is published very soon after the Bill receives Royal Assent. Things that we could be dealing with now should not end up delaying the ability to make decisions and implement the regime.

Although we are concerned about the definition, we support the overall importance of the measures outlined in the clause and the function of mandatory referral to the CMA, in the interests of checking compliance with the principles, bringing assurance on value for money and confirming that there will be no distortion or harm to the economy.

On amendment 28, the hon. Member for Aberdeen North makes an important continuing reference to the Government marking their own homework. Although we recognise the intention and some of the arguments behind the amendment, we do not think that producing a report on a subsidy every time one is given by the Department for Business, Energy and Industrial Strategy—as a sort of blunt tool—would necessarily be the most effective use of the CMA’s time.

Rather, we have argued very strongly for all subsidies, regardless of whether they are below a particular amount or given to a certain recipient, to be posted on the database to ensure sufficient transparency. We will also seek to ensure that there are greater rights on call-in powers or that the CMA can investigate itself, if it deems that there a reason to do so. We think that any assurances, which are, in part, the intention behind the amendment, could be better delivered through the Bill in other ways. On that basis, we will abstain on amendment 28. We support clause 52 standing part of the Bill.

As always, it is a pleasure to serve under your chairmanship, Ms Nokes. Before I begin, I would like to make a general point about today’s debate and address a question raised during our discussions on Tuesday. Throughout the discussion of clauses in part 4 of the Bill, Members will hear me refer to the subsidy advice unit, which will be a new sub unit of the Competition and Markets Authority established by this Bill. Technically speaking, the provisions in part 4 confer various responsibilities on the CMA, and it is for the CMA to decide which of its responsibilities it will delegate to the SAU. The mechanics of that process will be discussed later when the Committee considers clause 67. While the decision on how to organise its work rests with the CMA, in practice it is likely that most if not all of the responsibilities under part 4 will be delegated to the SAU. Therefore, for consistency and ease, I will be referring to the SAU throughout these debates.

Clause 52 sets out that two categories of subsidy and scheme will be subject to referral to the CMA. The first is subsidies and schemes of particular interest, which we discussed in the context of clause 11 on Thursday 28 October, and the second is the subsidies and schemes that are referred by the Secretary of State under the provisions that we will shortly discuss under clause 55. Amendment 28, as we have heard, would add to that list of subsidies subject to mandatory referrals, requiring the Department responsible for the subsidy control regime to refer individual subsidies above £2 million and all subsidy schemes to the SAU. In practice, the BESI, my Department, is the Department with responsibility for subsidy control. I can reassure hon. Members that BEIS takes its subsidy control commitments very seriously. BEIS subsidies, like those of all other public authorities in the UK, will be subject to the “subsidies of particular interest” regime. There is no special treatment in this regime for my Department: indeed, BEIS can already ask advice of the CMA where necessary, using the powers in the Enterprise Act 2002.

The Bill establishes the two categories that we have talked about: subsidies and subsidy schemes of interest, which can be voluntarily referred to the SAU, and subsidies and schemes of particular interest, which must be referred to the SAU. The Government will set out in regulations definitions for both of those categories, and those regulations will be subject to the affirmative procedure, so there will be opportunity for parliamentary scrutiny of them. Those definitions will capture subsidies that are more likely to give rise to trade disputes, as well as subsidies that are more likely to distort UK competition and investment. BEIS subsidies and subsidy schemes will be subject to the same requirements and procedures as all other subsidies. I assure hon. Members that my Department really will not get any special treatment on this issue.

However, routinely requiring BEIS to be referred to the SAU when it offers subsidies and subsidy schemes would be a disproportionate approach to managing the risk of those highly distortive subsidies. It is important for the SAU to focus its attention and casework on genuinely distortive subsidies, not to focus unduly on subsidies and schemes made by BEIS in particular. The Government fully agree that subsidies and schemes of particular interest merit a proportionately higher level of scrutiny than other less distortive subsidies and subsidy schemes, but those subsidies are, in principle, better captured through a robust and well-evidenced set of thresholds and criteria. Those criteria will be set out in regulations defining the subsidies and schemes of particular interest, rather than placing a discrete requirement on a single public authority on the face of the Bill.

Specifically regarding the process, and what might happen in terms of subsidies of interest and subsidies of particular interest, does the Minister agree that this is going to be a movable feast? The regulations will be subject to the affirmative procedure, but things may change, and therefore there will need to be a change to the interests and particular interests. I am just asking the Minister to give me comfort that if the Government agree there is a particular issue with something, and it needs to be added to the group of “interest” or of “particular interest”, it will be added.

Yes, I can give the hon. Lady that assurance. Those schemes will be set out rigidly and subject to the affirmative procedure, so we can have parliamentary scrutiny, but none the less—as she rightly says—we need to retain flexibility, which is exactly why those definitions are in regulations in the first place, rather than on the face of the Bill. Of course, we look to provide as much parliamentary scrutiny of those regulations as possible. I ask the hon. Lady to withdraw her amendment.

I will not press this amendment to a vote at this stage, but I might bring it back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

The clause requires that public authorities refer certain subsidies and subsidy schemes to the subsidy advice unit before they are given or made. Two types of subsidies or schemes must be referred: those defined as being of particular interest in clause 11 and those that are called in by the Secretary of State under clause 55.

We support clause 52. I am not concerned about the detail of the clause, but how it will be effective as part of the regime. This comes back to why the rules around what can be referred under the definition of a subsidy of particular interest and who has what call-in powers will be a fundamental question to come back to. It would be a shame to have a good clause and not use it to best effect to support the best outcomes of the regime.

I agree with the hon. Lady. My concern, which I mentioned briefly when talking about the amendment, is that subsection (1) is not flexible enough. It mentions particular interests and

“where directed to do so by the Secretary of State”,

but I would prefer to see an additional category that says, “other reasons”, with regulation to follow if that is what the Minister suggests. There are probably more reasons why things could be referred mandatorily to the CMA without having to go through the affirmative process of changing the particular interest subsidy section in clause 11. There could have been a little more flexibility in that clause, and it would be useful if the Minister agreed to think about that.

I am always happy to think about flexibility.

Question put and agreed to.

Clause 52 accordingly ordered to stand part of the Bill.

Clause 53

CMA reporting period for mandatory referral

Question proposed, That the clause stand part of the Bill.

Clause 53 sets out the timeframe within which the subsidy advice unit must publish its report on a subsidy or subsidy scheme once a mandatory referral has been made to it by a public authority. The subsidy advice unit has an initial five-day working period in which to tell the public authority whether it has provided the information required by clause 52. It then generally has 30 working days in which to publish a report on the subsidy or subsidy scheme. That is the reporting period.

There are a couple of situations where it might be extended on a case-by-case period, whether by mutual agreement with the SAU and the public authority or directed by the Secretary of State following a request made by the SAU. Extensions are intended to be used sparingly—for example, when the SAU has been asked to report on a particularly complex case.

It is a pleasure to respond to the Minister’s comments. The clause sets out the CMA’s reporting period for mandatory referrals. It specifies that the CMA has 30 working days to issue a report, unless the reporting period is extended under subsections (4) or (6). There is also the important five-day period for the CMA to respond to a request for a referral.

Labour Members recognise the importance of a relatively quick reporting period to give public authorities the confidence they need when granting subsidies under what is designed to be a quicker and easier system. However, it should not be without safeguards and, sometimes, extra safeguards, bearing in mind that pre-notification brings checks earlier in the process. We have to continue to be very mindful of that. We want subsidies that are given for the right reasons to be granted, without an extra onerous delay from the reporting taking too long, so it is important that some targets and mandatory deadlines are in the legislation.

We are concerned about whether the CMA will have the necessary capacity to produce the initial response within five days, and then the report within the 30 working-day period. Can the Minister offer reassurances about how the Government will monitor, review and work with the CMA on whether it has the capacity? There may be a spurt of requests, particularly perhaps earlier on in the process, as public authorities are starting to feel their way through it. They may even request, for good reason, voluntary referrals. What process is he putting in place to ensure that the CMA has the necessary resource to carry out its reporting adequately and in a timely manner?

We want that reporting to be to the required standard. Corners should not be cut in order to meet a deadline. We need the work to be done effectively and with the confidence of all interested parties and the public. We would also like clarity on what exactly would constitute an exceptional circumstance to allow the Secretary of State to extend the reporting period. Will the Minister provide further clarity on what might fit that definition? Despite those concerns—there may need to be some tightening up later—the clause lays out the necessity of the measures for the effectiveness of the regime. We will therefore agree that it stand part.

The purpose of the referral process is not for the subsidy advice unit to duplicate the public authority’s assessment of whether the subsidy complies with the subsidy control requirements. The SAU provides the evaluation of the assessment based on the information that is already provided by the public authority, so it is not duplicating work. We therefore believe that 30 working days is reasonable, given that specific role, but for exceptional or complex cases where more time may be necessary, as I said, the SAU may extend the reporting period, either through agreement with the public authority or by a request to the Secretary of State.

When that extension is agreed by mutual consent, the SAU has to publish a notice stating how much the reporting period has been extended by and why that has happened. If it cannot be agreed by mutual consent, the SAU can request that the Secretary of State directly extend the reporting period. That can be requested and, in turn, granted only in exceptional circumstances. We chose the CMA in the first place to host the SAU because of its expertise and experience in protecting competition and investment, making it a natural fit for those broad aims. We are already working closely with the CMA to plan for the delivery of the new SAU, ready for the implementation of the regime.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

Cooling off period following mandatory referral

I beg to move amendment 3, in clause 54, page 30, line 8, leave out “on or”.

This amendment ensures that a public authority may give a subsidy after the reporting period expires, but not on the final day of that period.

The amendment consists of a very minor change that is nevertheless necessary to ensure the public functioning of the mandatory referral process. Clause 54 requires that the public authority waits for a cooling-off period to elapse following the subsidy advice unit’s report on a mandatory referral before giving a subsidy or making a subsidy scheme. That is intended to ensure that public authorities have a minimum window for considering the contents of such a report before giving the subsidy or making a scheme. Subsection (3) applies where the subsidy advice unit has not produced a report before the statutory reporting period of 30 working days. The reporting period is usually 30 working days. Here there is no need for a cooling-off period since there is no report for the public authority to consider. Instead, the public authority should be able to give the subsidy or make the scheme any time after the reporting period has expired.

As currently drafted, subsection (3) allows the public authority to make the subsidy on the last day of the SAU’s 30 working-day reporting period, before it has technically expired. That gives rise to the theoretical possibility of a public authority being able to give a subsidy or make a scheme on the last day of the reporting period, when there is still a short time left for the SAU to publish its report—that is not the intention. This amendment clarifies that the full reporting period must have expired before the public authority can give a subsidy or make a scheme without having to wait for a cooling-off period to elapse.

We support Government amendment 3, which provides clarity as to exactly when the cooling-off period ends. I will reserve my other comments on the clause for the next stages.

Amendment 3 agreed to.

I beg to move amendment 48, in clause 54, page 30, line 10, leave out “Secretary of State” and insert “CMA”.

This amendment provides that the power to extend the cooling off period should sit with the CMA rather than the Secretary of State.

The Labour party accepts the necessity of the cooling-off period to ensure that appropriate consideration is also given to the CMA’s report. However, we do have some concerns about subsection (4) of the clause. We believe that the power to extend the cooling-off period should lie not with the Secretary of State but with the CMA. Given that the extension of the cooling-off period could have a significant effect on the granting of the subsidy and the effectiveness of its intended purpose, we should not risk it being seen as a politically charged, or political, decision. As such, we believe that it would be better for the CMA, an independent organisation whose judgment is trusted, to make that decision. Amendment 48 would make that change.

As we have heard, clause 54 provides for a cooling-off period of five working days that have to expire before the authority can give a subsidy or make a subsidy scheme that has been subject to the mandatory referral process. The clause further provides that the Secretary of State may direct an extension to that cooling-off period if they judge that the report published by the SAU at the end of the mandatory referral process shows serious deficiencies with the public authority’s assessment against the subsidy control principles. Amendment 48 would remove that power from the Secretary of State and give the SAU the power to direct an extension to the cooling-off period. However, that would be at odds with the advisory role of the SAU, as laid out elsewhere in the Bill. We will discuss that in a more holistic way in the context of other amendments, particularly amendment 58 and new clause 3.

For now, I emphasise the Government’s view that the SAU is not a regulator or a gatekeeper, but rather acts as that impartial adviser for the most potentially harmful subsidies and schemes. Its reports are non-binding, and it will provide an important way of scrutinising the underlying assumptions in the design of subsidies and schemes, as well as identifying potential weaknesses. Granting a power to the SAU to extend the cooling-off period after it has published its report risks muddying the water between the role of adviser and enforcer.

If there is a concern, does the Minister envisage the CMA being able to recommend extending the cooling-off period?

Part of the CMA’s regular reporting on how the system works will look at the scheme holistically, and it may wish to look at that period as well. Ultimately, it is the Secretary of State who is responsible for the subsidy control system and its consequent effects on competition and investment across the UK. Although the SAU will be created to help facilitate the effective operation of the regime, it does not have the same overarching responsibilities as the Secretary of State, so it is right that the Government bear the responsibility for intervening in the subsidy control regime where necessary. In drawing the SAU into the space for that decision making and matters of public spending, even in a limited way, the amendment would risk the CMA’s hard-earned reputation for independence and political neutrality.

I have spent years looking at education reports and care inspectorate reports. There are criteria for giving marks and a particular language is used—something is good, poor or dreadful. Is the Minister expecting that “serious deficiencies” will be used by the CMA in the report? Will it say, “We consider there to be serious deficiencies”, which the Secretary of State would consider to be a red flag, resulting in the potential extension of the cooling-off period? Does the Minister think the CMA will do that explicitly, or will the Secretary of State have to read between the lines and try to work out how bad things are? We do not know how the reports will be structured, so it would be helpful if the Minister could make clear whether the Secretary of State is going to understand the meaning of the reports and whether the SAU would seek an extension to the cooling-off period because it believed there were serious deficiencies.

There is not going to be a rating, because the SAU is not a regulator or enforcer, but it is responsible for making sure that the situation is made as clear as possible so that people, not least the Secretary of State, can understand it. That is why we have left this matter to the CMA—its staff are experts and have great experience of doing exactly that.

This has been a very helpful debate. The Minister is right: we will discuss some contextual powers in the debates on later clauses and new clause 3. Clarifying the roles, expectations and powers for the CMA, the Secretary of State and other bodies, such as devolved Administrations, is an important point to come back to, but I will not press the amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 50, in clause 54, page 30, line 18, at end insert—

“(5A) The Secretary of State must by regulations define ‘serious deficiencies’ for the purposes of this section.”

This amendment requires the Secretary of State to define “serious deficiencies” for the purposes of directing that the cooling off period is extended.

With this it will be convenient to discuss amendment 51, in clause 54, page 30, line 26, after “subsection” insert “(5A),”.

This amendment is linked to Amendment 50.

It is a pleasure to move amendment 50 and, with that, to speak to amendment 51, to which it is related.

Clause 54(4) states that the Secretary of State can extend the cooling-off period if he or she considers that the CMA’s report has identified “serious deficiencies”. The hon. Member for Aberdeen North has referred to that point. Yet again, the Bill is lacking a key detail—namely, what would constitute a serious deficiency. We have had a brief discussion on this point. Clarity is necessary for public authorities, the CMA and interested parties, in order to have confidence in the new regime and the timing of subsidies.

The amendment would require the Secretary of State to define serious deficiencies for the purposes of directing that the cooling-off period is extended. It would be helpful to the Committee if the Minister could confirm how and where we will reach a definition of serious deficiencies and when we are likely to get that definition. My comments apply to both amendments 50 and 51.

The meaning of the term “serious deficiencies” is intended to mirror the common understanding of those words, so we do not believe the requirement to define it further is necessary. Defining it further, either in the Bill or through regulations, risks leading to a situation where the Secretary of State judges that there is a serious problem with a public authority’s assessment, but is prevented from taking action because the specific problem is not exactly set out in those regulations.

I am slightly surprised, because serious deficiencies is being used as a trigger for the Secretary of State to be able to use a power. I would be very surprised if there was a common understanding that was so common that even the members of this Committee, if they were to secretly write it down on a piece of paper and compare notes, would have exactly the same definition of serious deficiencies. I am not sure that suggesting there is a common understanding, as if that is fact, is the right way to address this particular point. We need this defined, and we need to know when and where it will be defined.

One of the problems is that, if we define it in the way I think the hon. Lady is after, we then lose some of the flexibility. I was just about to say that the exact situation will vary on a case-by-case basis. A serious deficiency could arise, for example, if the subsidy advice unit identified that the proposed subsidy or scheme might have significant negative effects on UK competition and investment but the public authority had not considered any of the options for mitigating those effects. Another example might be if the SAU identified significant technical flaws in or omissions from the public authority’s assessments of compliance with the requirements of chapters 1 and 2 of part 2, such as the analysis of how the subsidy incentivised a change in the beneficiary’s behaviour or the impact on international trade.

Does the Minister agree that it is likely that the SAU will have internal working definitions of what is “acceptable” or “deficient”, and that it is likely to say that to the Secretary of State in giving its recommendations and possibly asking for any extensions?

Absolutely—that is exactly what I was going to come on to. The hon. Lady has obviously seen the next paragraph I was going to read. The Secretary of State would not be taking that view on his own. It would not be an arbitrary judgment; it would be acting on the basis of a published report by the SAU, which is obviously independent.

As the hon. Member for Feltham and Heston said on Second Reading and has reiterated this week,

“the new system will work only if it provides transparency, oversight and scrutiny”.—[Official Report, 22 September 2021; Vol. 701, c. 341.]

This amendment only serves to undermine those aims slightly—unintentionally, I am sure—by limiting the circumstances in which the Secretary of State can act to extend the cooling-off period and ensure that a public authority has more time to consider the SAU’s comments. I therefore request that she withdraw her amendment.

I thank the Minister for his comments. I will not press the amendment to a vote, but I want to repeat this point. In light of what the Minister has said, some of the examples or scenarios that he has started to outline suggest that there is more that can be done to scope out, set out some expectations or perhaps put something in guidance so that there starts to be a sense of scope around what sorts of scenarios could result in a consideration of serious deficiencies.

I say that not because I am trying to create an issue that is not there, but because where we have something in legislation that is a basis on which a power is to be exercised, it is incumbent on the Government to ensure that there is greater clarity about what the expectations might be. That might not be a complete list, defined A to H, but it may be a broad set of guidance, for use both by the subsidy advice unit in making assessments, and by the Secretary of State in making a clearer and more transparent decision that could also be open to scrutiny. I hope the Minister will confirm to the Committee that he would be prepared at least to look at some of those areas he has outlined—perhaps there will be more and we might need to come back to this in the regulations—to provide clarity on what could be quite an important use of the power. We would hate for the use of the power to be challenged on the basis of people not agreeing that something was a serious deficiency. We do not want the process to be subject to unnecessary delays that could be dealt with by planning ahead for different interpretations. There is perhaps not the common understanding that the Minister thinks of “serious deficiencies”.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Clause 54 establishes the cooling-off period that must elapse before a public authority may give a subsidy or make a subsidy scheme that has been referred to and reported on by the subsidy advice unit, following a mandatory referral.

We have no further comments other than the issues we have raised already. We support clause stand part.

Question put and agreed to.

Clause 54, as amended, accordingly ordered to stand part of the Bill.

Clause 55

Call-in direction

I beg to move amendment 52, in clause 55, page 30, line 29, after “Secretary of State” insert

“, the Scottish Ministers, the Welsh Ministers and the Department for the Economy in Northern Ireland”.

This amendment extends the call in powers under this section to the Devolved Administrations.

It is great to see you back in the Chair, Ms Nokes, bright and early this time.

The amendment addresses the call-in powers as they relate to the devolved Administrations. We think that the power to call in is a good power to have in the Bill, but it needs to be consistent and apply to the devolved Administrations, not just to the Secretary of State.

Clause 55 allows the Secretary of State to request an assessment of a subsidy or subsidy scheme if the Secretary of State believes it could be breaking regulations or having negative effects on competition and investment in the United Kingdom. As we have said a number of times, it is important that the First Ministers and the Northern Ireland Department responsible have those same powers. It makes no sense that the Secretary of State should be empowered to call in Scottish, Welsh and Northern Irish subsidies that may damage English interests, but the Scottish, Welsh and Northern Irish leaders cannot call in subsidies that may damage the interests of their own nations. That is what we heard in the evidence sessions.

I start with the evidence from Thomas Pope, deputy chief economist at the Institute for Government, who told us that subsidy control

“affects devolved competence and the operation of policy in all four nations of the UK. I therefore think it is appropriate that there be better devolved representation.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 31, Q43.]

Will the hon. Gentleman give way?

The hon. Gentleman is wearing a mask, so I will give way.

In the previous discussions on this issue, the opinion of the Bill Committee seemed to be that these matters were the responsibilities of the Secretary of State. It therefore makes no sense to me to devolve those responsibilities to the devolved Administrations. In some of their comments, Opposition Members have fully accepted that these matters are the responsibility of the Secretary of State, because it is a reserved power.

Just because the Government keep winning the votes, which they always will do because they have a majority in Parliament and therefore on the Committee, that is not a reason for us to not make valid arguments. This is a slightly different point on our concerns about the failure to reflect the devolution settlement in the Bill. Call-in is a slightly different aspect of the powers needed for a functioning subsidy regime, and it is right that we are raising it at this stage of the deliberations.

Will the hon. Gentleman give way?

The hon. Gentleman is wearing a mask, so I will give way.

Is it not precisely the point that this does reflect the devolved agreement, because the Secretary of State has those reserved powers?

I think the hon. Gentleman missed the point I was making, but there we go. It is entirely appropriate, given that the regime is a four-nation regime, that the four nations have the powers of call-in to the CMA in the way that our amendment sets out.

This is an important point, so I am grateful to the hon. Gentleman for giving way again so soon. There is no four nations concept within our constitution. We have one United Kingdom Government and three devolved Administrations. Four nations is something reserved for rugby matches and the vernacular—[Interruption.] Indeed, the rugby is six. It is not something within our constitution. He has referred to the four nations on several occasions, and on this occasion I feel it is important and relevant to make that point.

I suspect that more than one party would be very interested in repeating those remarks multiple times, certainly in two of the nations of this country. They are called nations within the devolved settlement; we have a devolution settlement that has “four nations” within it. It will be interesting to see how many times the hon. Gentleman is quoted saying that.

I will quote what George Peretz told us about why it matters that there should be a call-in power for all four nations:

“In a situation where an English local authority, the Secretary of State or another UK Government body acting as an English Department does something that is designed to benefit England but causes serious concern in Scotland or Wales, why should the Welsh or Scottish Ministers not be able to do the same thing if the concern is with competition or investment within the United Kingdom? I find it slightly hard to see what the argument against that is.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 44, Q63.]

I have not heard from either the hon. Member for Clwyd South or the hon. Member for Aberconwy an argument against what he told us last week.

Rachel Merelie, senior director for the Office for the Internal Market at the CMA, noted:

“It is really important that all granting authorities are treated fairly and equitably, regardless of whether they are in the devolved nations or in England.”––[Official Report, Subsidy Control Public Bill Committee, 26 October 2021; c. 69, Q98.]

I am not the only one talking about the devolved nations by any means; we have it from the CMA.

Will the hon. Gentleman give way?

The hon. Gentleman does not have a mask on, so I will not. He will be able to make a speech afterwards, as I think one of his colleagues said.

The devolved nations of the United Kingdom cannot be treated as second class when it comes to economic matters that could have potentially monumental impacts on the proper functioning of their markets. The devolved Administrations must have equitable powers with the Secretary of State to call in subsidies where they could be damaging to their own economies.

I stand as a proud representative of the nation of Scotland to make a brief speech on amendment 52. The powers that are suggested under clause 55 are limited powers. They are not unlimited powers to call in anything on a whim of the Secretary of State or of anybody else. They can only be called in in relation to subsidies or subsidy schemes of interest, or subsidies or subsidy schemes in which the Secretary of State considers there is a failure to comply with chapters 1 and 2 of part 2, or there is a risk of negative effects on competition or investment within the United Kingdom.

The amendment proposed by the Opposition does not affect that. It would still apply only in the case that the devolved Administrations wanted to call in something that was a scheme of particular interest, or something that the Secretary of State had presumably already called in that was against chapters 1 and 2 of part 2 or where the Secretary of State agreed there were negative effects on competition or investment within the United Kingdom. Those are not, as the Government members of the Committee have suggested, unlimited powers parallel to those of the Secretary of State; they are limited powers. The only time the power would be exercisable is if the schemes were of interest—rather than of particular interest, because they are mandatorily referred—and the three devolved Administrations would be able to call those schemes in. It would be a limited power that would only apply for schemes of interest. I absolutely support the amendment—it makes sense—and we would obviously like it to go further. We have a devolution settlement and this is a proportionate amendment that makes sense in the context.

Under the powers in the Bill as drafted, when the Secretary of State decides to exercise the call-in power, that direction has to be published. In addition, the SAU has to provide annual reports on its caseload, including any subsidies and schemes that were called in by the Secretary of State. That transparency will help ensure that the powers are used appropriately and that Parliament has oversight of how and when the powers are being used. Amendment 52 would allow those referrals to the SAU under the terms of clause 55 to be made by devolved Administrations, whereas the Bill provides the power for the sole use of the Secretary of State.

In the majority of cases, the most potentially harmful subsidies will be those that meet the criteria for subsidies of particular interest, which will be set out in regulations, but it is inevitable that there will be some subsidies or schemes that fall outside those boundaries. They will still benefit from the additional scrutiny offered by the SAU.

The call-in power provides a mechanism to catch potentially highly distorted subsidies that may not be caught within the “subsidies of particular interest” definition. It will also provide a safety net where there is a risk of failure to comply with the subsidy control requirements or there is a risk of negative effects of competition and investment within the UK. This is a reserved power and as such the Secretary of State’s responsibilities and interests in making referrals are UK wide. As a member of the UK Government, they are responsible for subsidies granted in all parts of the UK being compliant with our international obligations.

I have two questions. I would have expected that “particular interest” would cover anything that does not meet chapters 1 and 2 of part 2 anyway, so it would be nice if the Minister could clarify that point. Secondly, if any of the devolved Administrations request a meeting with the Secretary of State because they are concerned and want the Secretary of State to call something in, would the Secretary of State grant that meeting?

On meetings, I am not the Secretary of State, but effectively, yes—we want to engage with the devolved Administrations. We do that on a regular basis, and have done in the formulation of this Bill, as we have discussed many times, and we will continue to do so as we go through guidance and the working of the Bill.

In the event that one or more of the devolved Administrations has serious concerns about a subsidy given or a scheme made, of course they can request that the Secretary of State use that call-in power. The Secretary of State would carefully consider any request from their counterparts in the devolved Administrations, just as they would on any other policy matter. As I say, we have met the devolved Administrations a number of times since July 2020 on the formulation of this Bill. We continue to meet and engage with them regularly, and listen to their views as the Bill progresses through Parliament, and we will do so in the lead up to implementation. I request that the hon. Member for Sefton Central withdraws the amendment.

My other question was about the definition of “particular interest”, or “interest”. Subsidies of particular interest will be mandatorily referred, as we have already agreed, but subsides that risk to fail to comply with the requirements of chapter 1 and 2 of part 2 could be referred by the Secretary of State. It would concern me if compliance was not part of schemes of particular interest, or schemes of interest. I understand that some schemes of particular interest would be defined on the basis of the sector they are in and the specific details of the subsidy, but I would expect that lack of compliance with the rules would cause a scheme to be of particular interest anyway. I hope the Minister understands what I am trying to get at here. If a subsidy does not comply with the subsidy control principles, surely it is either not a subsidy—it is not allowed—or it is a scheme of particular interest that would need to be looked at mandatorily, or perhaps optionally, by the CMA.

I think I get the general gist of where the hon. Lady is going with that point. That is why, rather than trying to define them as not complying, we are trying to define them specifically at the outset, hence the regulations that we will be putting forward, but there is plenty of opportunity to have that discussion.

The hon. Member for Aberdeen North correctly made the point that the amendment asks for a limited set of powers. I set that out using the evidence. We should follow the evidence of people who are experts on these subjects. We had a range of very good witnesses, who set out why there should be the sorts of powers that we are proposing. I cannot help think that there will be occasions when the Secretary of State is making awards. If he, as it says in the Bill, is making those awards, is there not a potential conflict of interest if there is not another way of providing that call-in if there is perceived damage in the other three nations? The Minister might want to respond to that point.

The amendment makes a limited request. The Minister talked about requests to the Secretary of State for a call-in, but a request is not the same as a power. Unless there is that power—potentially in the case of a conflict of interest where the Secretary of State is the awarder—there is a limit to the way the Scottish, Welsh and Northern Irish Administrations can ensure there is a fair application of the system in terms of call-ins. I would be grateful if the Minister could come back on this point about the potential conflict of interest where the Secretary of State is the awarder in relation to the use of call-in powers.

As I say, the Secretary of State will be acting on behalf of the UK Government. Subsidy control is a reserved power, as we established in the debate for the United Kingdom Internal Market Act 2020 that we had at length at the end of last year. None the less, there is no special treatment for the Department for Business, Energy and Industrial Strategy. There was plenty of opportunity through the publication of the advice and the reason for call-ins, and any enforcement that may need to be done through the Competition Appeal Tribunal to highlight that potential. None the less I think there were enough checks within the structure to avoid that. I hope the hon. Member will withdraw the amendment.

I do not think that we got an answer to my question. There is still the concern that if the Secretary of State says no and there are legitimate concerns in the three nations, there needs to be the additional limited opportunity of call-ins. We will push the amendment to a vote.

Question put, That the amendment be made.

Clause 55 gives the Secretary of State the ability to direct a public authority to request a report from the subsidy advice unit on a proposed subsidy or subsidy scheme. That may be made in relation to a subsidy of interest or any other subsidy or scheme that the Secretary of State considers to be at risk of failing to comply with the subsidy control requirements or of negatively impacting competition or investment in the UK. It is not intended to be used routinely, but it is a necessary safeguard. It is there to ensure that an additional layer of scrutiny can be applied to subsidies that might risk creating market distortions but would otherwise not be subject to mandatory referral to the SAU.

I was going to ask a question about this clause, and the Minister has managed to make me even more confused. Subsection (1) states:

“A public authority may request a report from the CMA before giving a subsidy, or making a subsidy scheme, of interest.”

It does not state that, additionally, any other subsidy may be referred to the CMA under a voluntary referral. It might elsewhere in the legislation, but it does not at this point.

My concern was that it relates only to subsidies “of interest”—subsidies of particular interest are covered by mandatory referral, and that is fine—but for subsidies that fall outside the category of interest, perhaps because interest is narrowly drawn by the regulations when interest is set, there seems to be no way for those public authorities to refer them voluntarily to the CMA, as the legislation is drafted. It would be good if they could.

Let us say that “particular interests” and “interests” are defined by the Government, that goes through the affirmative procedure, we have a discussion, and the definitions are agreed. Accidentally, however, something is left out of the category of interest—because we do not think of everything—and a local or public authority discovers the anomaly and thinks to itself, “Do you know what, I should refer this to the CMA voluntarily, because I think it probably should be included in the schemes of interest, but in the way that the legislation is written, it does not fall under that”, so it tries to make a voluntary referral. It cannot, however, because it may make a voluntary referral only in the case of something that is of interest.

There is a bit of a gap. Authorities should be able to make that voluntary referral, whether it is a scheme of interest or not. There is a concern. As to what the Minister said, absolutely, if the Secretary of State has a concern additional to the interest section, that would be fair enough and make a difference, or if the authority itself decides that it should be referred to the CMA. I do not think that that will be a huge amount of extra work. Authorities will not refer themselves to the CMA for fun; they will do so when they feel that there is a reasonable chance that what they are considering doing is contentious.

I will not vote against the clause, because voluntary referrals are a good thing, but I do not think that it goes as far as the Minister suggested it goes—unless I have missed something.

I was not entirely clear which clause the hon. Member for Aberdeen North was speaking to. We are still on clause 55 stand part—but it was a very good speech on the next clause, so we now know what she will say.

We expressed our concerns in the debate on our amendment. I hope that the Minister will reflect on those concerns and consider whether greater strength is needed in this clause and, similarly, I suspect, in clause 56—when we get to that debate.

It is no wonder that I was confused by what the Minister said. He was speaking to clause 55 and I was looking at clause 56. Apologies.

We will hear the hon. Lady’s comments again.

Question put and agreed to.

Clause 55 accordingly ordered to stand part of the Bill.

Clause 56

Voluntary referral to CMA

Question proposed, That the clause stand part of the Bill.

The clause—wait for it—allows public authorities voluntarily to refer certain subsidies or subsidy schemes to the subsidy advice unit before they are given or made. Those are known as subsidies or schemes of interest, and the criteria will be set in secondary legislation, as set out in clause 11.

To make that voluntary referral, the public authority has to provide certain information about the subsidy or the scheme that will be referred, including an assessment by the public authority of whether its proposed subsidy or scheme would meet the principles, the prohibitions and the other requirements set out in chapters 1 and 2 of part 2 of the Bill.

The Secretary of State is also given the power to make new regulations specifying the form in which that information must be provided to the SAU, as well as any additional information that must be provided beyond that which is already set out in the clause. That will enable the content and the form of the request to be adapted based on operational experience of whether the SAU is getting the information it needs to report back effectively.

Openness, transparency and a risk-based approach to scrutiny will ensure confidence in the new UK subsidy control regime. The voluntary referral process provides an additional avenue of scrutiny for public authorities seeking to grant some of the more potentially distortive subsidies and schemes. To answer the question from the hon. Member for Aberdeen North, who may want to ask it again, the process gets the balance right by ensuring a flexible system with enough information for the public authorities to get it right in the first place. A lot of that will be done through guidance, and the SAU is there to be helpful and give advice; it is not an enforcer or a regulator.

Let me just imagine that I made an excellent speech.

The concerns that I raised a few moments ago still stand. I think there should be more flexibility in the first part so that it is made clear to public authorities that they can refer something should it not fall under the specific definition of “schemes of interest”. I would appreciate it if the Minister considered tabling an amendment to that effect. I do not feel that that would make additional work.

I genuinely feel that public authorities would use that flexibility only in circumstances where they feel that “schemes of interest” has been defined too narrowly to cover the scheme that they would like to refer to the CMA. That flexibility would not be overused; nobody would be daft enough to overuse it. There seems to be no ability for public authorities to refer anything unless it is classed as a scheme of interest or particular interest, or is something deemed by the Secretary of State to meet various criteria. I would appreciate it if the Minister looked at that.

The clause does indeed allow public authorities to

“request a report from the CMA before giving a subsidy, or making a subsidy scheme, of interest.”

We have had some interesting and helpful discussion so far, but our main concern remains the lack of clear definitions in the legislation, particularly the definition of “interest”. Such clarity would provide some necessary assurance to public authorities, the CMA and subsidy recipients about how the regime will work in practice.

We could have pre-empted this issue and had clearer definitions to ensure that more was done upstream by public authorities, meaning fewer referrals. More referrals will create more burden on the subsidy advice unit. Referrals will be made for good reason, however, so we absolutely need the provision. It is likely that there will be greater demand for referrals in the earlier stages of the regime’s implementation, but as people become familiar with the process and judgments become clearer, and the CMA gets some case studies to use, the system will improve.

It is important that there is clarity from Government. We may come back to some of this, but the referring public authority will also need clarity on what it will and will not get back. Guidance on that would be extremely helpful to make the legislation work effectively.

I take on board the hon. Lady’s point about guidance and ensuring that public authorities know what to provide and what to expect back. That is absolutely fair. In terms of where we go and how wide we make this, it is not our intention to replicate the needlessly complicated and slow processes under the state aid scheme; this will be focused on the most potentially distortive subsidies, to provide scrutiny where it is most needed, so it would not be proportionate to have the extra step for every subsidy regardless of size or impact.

The SAU itself will have discretion on whether to accept voluntary referrals based on the CMA’s existing and published prioritisation criteria, because we want to ensure that it can do its job effectively, but none the less offer that advice.

The Minister is starting to go a little bit further in implying that there will be, perhaps not trade-offs, but decisions that will need to be made about whether to have the review done by the subsidy advice unit and what that might be intended for. What the clause might be intended for may not be the same as what public authorities may feel in wanting to seek a voluntary referral. Can he perhaps clarify whether, for example, undertaking a voluntary referral may be used to seek to provide reassurance so that there is less likelihood of a challenge later on? Decisions that are taken will bear some relationship to other parts of the Bill and the ability to bring challenges. What status would receiving a report back from the subsidy advice unit have? Could that be used if, for example, there was a challenge later on?

Indeed, that is exactly the reason for the SAU not to be the regulator or the enforcer but to provide expert, independent advice. Even in the more distortive schemes, as I have always said, there is nothing stopping a public authority from giving the subsidy even if there is advice not to. However, since that advice is published, it would be available to people looking in on the matter, and in any referral to the CAT that would be taken into account. One of the reasons for putting it under the CMA is that it already has the expertise and the ability to give good advice and robust assessment and analysis.

Rightly, where the SAU itself considers appropriate, the public authority can get advice on the design of its subsidy or scheme, but the SAU will base that on its own criteria, such as the overall impact on competition, strategic significance and the available resources.

Question put and agreed to.

Clause 56 accordingly ordered to stand part of the Bill.

Clause 57

CMA reporting period for voluntary referral

Question proposed, That the clause stand part of the Bill.

Clause 57 sets out the timeframe within which the SAU must publish its report on a subsidy or subsidy scheme. Once it has accepted a voluntary referral made by a public authority, it has an initial period of five working days to tell the public authority whether it will produce a report in response to the request. It will then generally have a reporting period of 30 working days in which to publish its report on the subsidy or subsidy scheme.

The clause also enables the Secretary of State to make regulations to amend either the period of five working days or the reporting period itself, which will allow the Government to amend those periods, should longer or shorter periods prove to be necessary based on experience of how the regime is working in practice. Any regulations would be subject to the affirmative procedure and therefore would need to be approved by Parliament in draft.

I thank the Minister for his comments on clause 57 stand part. The clause outlines the CMA’s reporting period for subsidies and schemes that are voluntarily referred to it. We have no issues with this clause, but I wanted to raise one small point in relation to subsection (6).

I would be grateful for clarity about how the Minister expects any extensions of the reporting period to be reported, because we do not just need to know that it is taking longer because there is complexity: we need to know whether it is taking longer because there is a resourcing issue, or because public authorities are not completing the paperwork correctly and there is some confusion over some information that might be provided. Understanding those reasons would inevitably be useful when seeking improvements to the system and making the process more efficient.

More efficiency also means less cost and better value for money, because it is public money that goes into the CMA and the subsidy advice unit, so we need to make sure those resources are used effectively and improve the quality of both the applications and the process. I would be grateful to understand how the Minister envisages that being done.

It is in the interests of the SAU and everybody else that this system works. If the quality of evidence that public authorities are giving is causing complexities, feedback to those public authorities would be incredibly helpful in making sure the framework works, but it is also the kind of thing that would be covered in the CMA’s reporting when it says how the framework is working in itself.

Would that be in the annual report, or in the five-year review? Five years is rather a long time.

It would be in both. That reporting is there to say what subsidies exist and how the framework is working, but those conversations would also be happening all the time through the advice to public authorities and BEIS’s communications with the CMA on a regular basis, making sure that the framework works. As I said, it is in everybody’s interests that we get that exchange right.

Question put and agreed to.

Clause 57 accordingly ordered to stand part of the Bill.

Clause 58

Call-in direction following voluntary referral

Question proposed, That the clause stand part of the Bill.

Clause 58 sets out what would happen if the subsidy advice unit agreed to report on a subsidy or scheme that has been voluntarily referred, and that subsidy or scheme is then called in by the Secretary of State. The clause streamlines the pre-award reporting process that would apply when the subsidy is called in following a voluntary referral, because the SAU should already have some familiarity with the subsidy or scheme that has been called in, due to its already having been voluntarily referred.

Three scenarios are dealt with within this clause. The first is where the SAU has not published its report on a subsidy or scheme that was voluntarily referred, and the statutory time limit for doing so has not yet expired. The second is where the SAU has not published its report on a subsidy or scheme that was voluntarily referred, and the statutory time limit has expired. The final scenario is where the SAU has already published its report on a subsidy, but that subsidy has not yet been given or made. This clause ensures that the processes for scrutinising subsidies and subsidy schemes by the SAU are as efficient and timely as possible.

We agree that in such cases, the subsidy or scheme in question should be treated as if it were part of a mandatory referral to the CMA. We have no issues with this clause, and will vote for it to stand part.

Question put and agreed to.

Clause 58 accordingly ordered to stand part of the Bill.

Clause 59

CMA report following mandatory or voluntary referral

I beg to move amendment 53, in clause 59, page 33, line 13, leave out paragraph (a).

This amendment removes the power for the Secretary of State to amend this section by regulation.

With this it will be convenient to discuss amendment 54, in clause 59, page 33, line 17, leave out subsection (6).

This amendment is a consequential amendment linked to Amendment 53.

We have concerns about the way the clause allows the Secretary of State to use regulations to affect the content and form of CMA reports. This is a question of the CMA’s independence. On the Competition and Markets Authority website, it describes itself as

“an independent non-ministerial department”.

The CMA’s work

“is overseen by a Board, and led by the Chief Executive and senior team. Decisions in…investigations are made by independent members of a CMA panel.”

In contrast, the clause would empower the Secretary of State to amend, by using regulations, the content of the CMA’s reports. It is very hard to see how this is anything other than a direct contradiction of the principle of independence, baked into the CMA’s set-up.

The timing of the change, given the shameful proceedings in the Commons Chamber yesterday, leaves the suspicion that it is, again, about removing the principle of independence from the heart of the CMA’s role. We saw this with the Prime Minister’s own adviser on ministerial standards, Sir Alex Allan, resigning because of the breach of the ministerial code, and we saw it yesterday with members of the ruling party scrapping the rules or attempting to scrap the rules on MPs’ conduct because one of their own was found guilty of what the Standards Committee described as an “egregious” breach and then wanting to scrap the role of the independent standards commissioner.

Will the hon. Gentleman give way?

Of course, they will all want to intervene—

Order. May I remind hon. Members to stay within the scope of the Subsidy Control Bill?

Thank you, Ms Nokes. On that basis, it will probably not be wise to take the interventions. I am using these things as an example of the ruling party’s attempts to remove independence. The CMA is also supposed to be independent. We have seen a desire to break the rules and then just remake the rules in the main Commons Chamber, and I fear that now we may be seeing something similar—we need to ensure that we do not see something similar—when it comes to the independence of the CMA in its role with regard to the subsidy control regime.

Without amendment, the clause will allow the Government to rewrite the contents of an independent report if there is any warning that it will say something that they do not like. That is not how independence works, and it is not good government. Our amendments would remove the power for the Secretary of State to do that. It would remove the power to edit reports published by the CMA, and it would ensure that the independence of the CMA stays as it is.

I have just a brief question. This clause lays out things that reports following mandatory or voluntary referrals “must” include and some things that the reports “may” include. Can the Minister confirm that the reports may also include things not mentioned here and that the additional things that would be included would be at the discretion of the CMA? If it can include only the musts and the mays in the clause, it will not be able to include anything else that the CMA considers would be relevant in the report. Given that the Minister has stressed the independence and expertise of the CMA, it would be sensible to confirm that it can include matters that it feels are relevant, whether or not they are explicitly mentioned in the Bill.

The CMA is independent and will use its expertise. I think that we have crossed wires here, because actually the clause allows the Secretary of State to talk about the content of the report but not to textually amend an independent report. That is not what we are talking about here, which is what is within scope of the report—to ensure that it can actually do it. This is to be able to give additional transparency and scrutiny in the regime itself. The clause allows him to make provision about the content and form of the report, but, as I said, not to change the text of an independent report.

Any changes to the content of the report must be made by the affirmative procedure. That is core to the subsidy control regime, because if the Government believe that the process needs to be refined, it is only right to have parliamentary scrutiny of it. By contrast, any specification as to the form of the report would be a technical regulation, for which the negative procedure is appropriate. Amendments 53 and 54 remove that possibility, except by future primary legislation.

As I say, removing the mechanism for amending or enhancing the baseline for SAU reporting that is set out in clause 59 would unnecessarily tie the hands of the SAU and future Governments seeking to improve the referral process based on the experience and expertise that is gathered over time through the functioning of the new regime. As set out in clause 67, the power to change the content of the report may be exercised only for a period of one year following the publication of SAU’s first report under clause 65.

As I have set out, however, changing the form of the report is a technical matter, so it is appropriate for the regulations to be subject to the negative procedure. I therefore request that the hon. Member for Sefton Central withdraws the amendments.

Clause 59(4)(a) uses the phrase

“amend subsection (1), (2) or (3) to make provision about the content of the CMA’s report”.

The Minister used the terms “text” and “content” interchangeably, which highlights our concern. Using secondary legislation, the Secretary of State is able to give himself the power to amend CMA reports. That is the problem—that is what overturns the power.

The Minister did not answer my question about additional information that the CMA may include in a report that is outwith the scope of the Bill. It does not fall under part 2; it falls under something else that the CMA thinks is relevant and should be in the report. Does the hon. Gentleman agree?

The Minister did not answer the hon. Lady’s question, so maybe he can do that after I finish my summing up, which will not take much longer.

We will push the amendment to a vote, because the Minister did not address our concerns about removing the independence of the CMA.

Question put, That the amendment be made.

Good morning, ladies and gentlemen. We enter the final lap. I have the usual announcements: electronic devices off, please, and no food or drink. Mr Speaker requests that Members wear face coverings as a courtesy to others; they are for the protection of others, not for the protection of yourself. I am not a terribly good example, but I cannot breathe with a mask on. Hon. Members are also asked to take covid lateral flow tests twice a week if coming on to the estate. I do not know whether hon. Members have done that; it might be a good thing to do before we depart for a week. Finally, Hansard would appreciate speaking notes.

New Clause 6

Expedited appeals: joining of related appeals

“(1) For the purposes of this section, an ‘expedited section 82 appeal’ is an expedited appeal within the meaning of section 82A of the Nationality, Immigration and Asylum Act 2002 (expedited appeals for claims brought on or after PRN cut-off date).

(2) For the purposes of this section, a ‘related appeal’ is an appeal under any of the following—

(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims), other than one which is an expedited section 82 appeal;

(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);

(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);

(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.

(3) If a person brings an expedited section 82 appeal at a time when a related appeal brought by that person is pending, the related appeal is, from that time, to be continued as an appeal to the Upper Tribunal and accordingly is to be transferred to the Upper Tribunal.

(4) If an expedited section 82 appeal brought by a person is pending, any right that the person would otherwise have to bring a related appeal to the First-tier Tribunal is instead a right to bring it to the Upper Tribunal.

(5) A related appeal within subsection (3) or brought to the Upper Tribunal as mentioned in (4) is referred to in this section as an ‘expedited related appeal’.

(6) Tribunal Procedure Rules must make provision with a view to securing that the Upper Tribunal consolidates an expedited related appeal and the expedited section 82 appeal concerned or hears them together (and see section 82A(4) of the Nationality, Immigration and Asylum Act 2002).

(7) Tribunal Procedure Rules must secure that the Upper Tribunal may, if it is satisfied that it is in the interests of justice in the case of a particular expedited related appeal to do so, order that the appeal is to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal.

(8) For the purposes of this section, an appeal is ‘pending’—

(a) in the case of an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (including an expedited section 82 appeal), if it is pending within the meaning of section 104 of that Act;

(b) in the case of an appeal under section 40A of the British Nationality Act 1981, during the period—

(i) beginning when it is instituted, and

(ii) ending when it is finally determined or withdrawn;

(c) in the case of an appeal under the Immigration Citizens’ Rights Appeals (EU Exit) Regulations 2020, if it is pending within the meaning of regulation 13 of those Regulations;

(d) in the case of an appeal under the regulation 36 of the Immigration (European Economic Area) Regulations 2016, if it is pending within the meaning of Part 6 of those Regulations (see regulation 35).

(9) In section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (decisions excluded from right to appeal to the Court of Appeal), after paragraph (bza) (inserted by section 21) insert—

‘(bzb) any decision of the Upper Tribunal on an expedited related appeal within the meaning given by section (Expedited appeals: joining of related appeals) of the Nationality and Borders Act 2021 (expedited appeals against refusal of protection claim or human rights claim: joining of related appeals),’.”—(Tom Pursglove.)

This new clause (to be inserted after clause 21) provides that where a person brings an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 that is subject to the expedited procedure under the new section 82A of that Act, certain other appeals brought by that person are also to be subject to the expedited procedure.

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

The new clause would be inserted after clause 21. It forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. It complements clause 21 by ensuring that individuals cannot utilise the appeals system as a tool to delay their removal from the UK.

Frequently, those facing removal or deportation from the UK utilise delay tactics, such as late claims and repeated appeals, to thwart removal action. That leads to unnecessary costs to the taxpayer and an increased burden on the court and tribunals system. Clause 21 addresses that issue by creating a new expedited appeal for late human rights or protection claims brought by recipients of a priority removal notice, as provided by clause 18. Expedited appeals will be determined quickly, and the decisions of the upper tribunal will be final. Therefore, clause 21 removes the incentive for bringing claims late and protects the appeal system from abuse.

However, there may be additional appeal rights generated by other claims that individuals may seek to exercise in parallel with an expedited appeal. Such additional appeals would usually be heard in the first tier tribunal. Consequently, an expedited appeal may conclude while an individual has an outstanding appeal in the first tier tribunal, which would prevent their removal from the UK.

New clause 6 enables other appeals in the first tier tribunal brought by a person with an expedited appeal to be heard and determined by the upper tribunal alongside the expedited appeal. That will ensure that, following the conclusion of the expedited process, final determination will have been made on the appellant’s right to remain in the UK and, where the upper tribunal decides that they have no right to remain, removal action can take place.

I welcome the Minister back to his place. I do not follow the logic of the new clause at all. If somebody is trying to play the system—and I do not like talking in those terms—surely all they need to do is not make a late claim in terms of the PRN notice; then, their existing appeal would proceed normally, with onward rights of appeal and so on. This proposal just does not make sense, even if we accept the Government’s logic, which I do not.

The point is exactly as I have set out: in the immigration system, we see repeated appeals deliberately designed to frustrate the system, and the new clause is an appropriate way, with appropriate safeguards, to ensure that the tribunal process can handle those appeals appropriately. It makes sense for appeals to be considered together so that attempts to frustrate the removal process cannot happen and cases are determined as quickly as possible. As I say, there are appropriate judicial safeguards in place in the tribunal process to ensure that appeals are heard appropriately and are directed through the appropriate tribunal. I commend the new clause to the Committee.

Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?

Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.

Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.

The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.

The bottom line is that we simply disagree on this matter. Clause 21 ensures that appeals relating to late human rights or protection claims are dealt with expeditiously, with decisions by the upper tribunal being final. This provides appellants with a swift determination of their claim. It also disincentives late claims and seeks to prevent sequential or multiple appeals from being utilised as a tactic to thwart removal.

However, the Government recognise that in certain circumstances an individual may exercise other appeal rights, in parallel with their expedited appeal. This could give rise to a situation whereby a person has an appeal in a first tier tribunal and an expedited appeal in the upper tribunal. Consequently, the expedited appeal may conclude while an individual has an outstanding appeal in a first tier tribunal. If the appellant was unsuccessful in their expedited appeal, the ongoing appeal in the first tier tribunal would prevent their removal from the UK. This outcome is undesirable and undermines the Government’s intention to disincentivise late claims by ensuring that appeals relating to such claims are determined quickly and conclusively.

The new clause ensures that where a person has an expedited appeal, any related appeal will also be subject to the same expedited process. Therefore, following the conclusion of the expedited process, the appellant’s right to remain in the UK will be determined with finality and, where an individual has no right to remain in the UK, removal action can take place. That is the logical and sensible approach that we propose to take.

Question put and agreed to.

New clause 6 accordingly read a Second time, and added to the Bill.

Let me explain the process from now on for about the next 10 minutes. We now come to a sequence of Government new clauses, all of which have been debated already with other clauses or amendments. I shall say to the Minister, “Will the Minister move formally?” The Minister, being obedient, will say, “Moved formally.” The Clerk will then read the title of the clause and I will put the questions that it be read a second time and that it be added to the Bill. I gently suggest to the Opposition that there is not much point in calling a Division on both those questions—you can, but it will take a lot longer. Let us see how we get on.

New Clause 7

Accelerated detained appeals

“(1) In this section ‘accelerated detained appeal’ means a relevant appeal (see subsection (6)) brought—

(a) by a person who—

(i) was detained under a relevant detention provision (see subsection (7)) at the time at which they were given notice of the decision which is the subject of the appeal, and

(ii) remains in detention under a relevant detention provision, and

(b) against a decision that—

(i) is of a description prescribed by regulations made by the Secretary of State, and

(ii) when made, was certified by the Secretary of State under this section.

(2) The Secretary of State may only certify a decision under this section if the Secretary of State considers that any relevant appeal brought in relation to the decision would likely be disposed of expeditiously.

(3) Tribunal Procedure Rules must secure that the following time limits apply in relation to an accelerated detained appeal—

(a) any notice of appeal must be given to the First-tier Tribunal not later than 5 working days after the date on which the appellant was given notice of the decision against which the appeal is brought;

(b) the First-tier Tribunal must make a decision on the appeal, and give notice of that decision to the parties, not later than 25 working days after the date on which the appellant gave notice of appeal to the tribunal;

(c) any application (whether to the First-tier Tribunal or the Upper Tribunal) for permission to appeal to the Upper Tribunal must be determined by the tribunal concerned not later than 20 working days after the date on which the applicant was given notice of the First-tier Tribunal’s decision.

(4) A relevant appeal ceases to be an accelerated detained appeal on the appellant being released from detention under any relevant detention provision.

(5) Tribunal Procedure Rules must secure that the First-tier Tribunal or (as the case may be) the Upper Tribunal may, if it is satisfied that it is in the interests of justice in a particular case to do so, order that a relevant appeal is to cease to be an accelerated detained appeal.

(6) For the purposes of this section, a ‘relevant appeal’ is an appeal to the First-tier Tribunal under any of the following—

(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims);

(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);

(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);

(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.

(7) For the purposes of this section, a ‘relevant detention provision’ is any of the following—

(a) paragraph 16(1), (1A) or (2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal);

(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).

(8) In this section ‘working day’ means any day except—

(a) a Saturday or Sunday, Christmas Day, Good Friday or 26 to 31 December, and

(b) any day that is a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 in the part of the United Kingdom where the appellant concerned is detained.

(9) Regulations under this section are subject to negative resolution procedure.”—(Tom Pursglove.)

This new clause expands the categories of immigration appeals that can be subject to the accelerated detained appeals process that was introduced by clause 24.

Brought up, and read the First and Second time.

Question put, That the clause be added to the Bill.