Relevant documents: 20th Report from the Delegated Powers Committee, 12th Report from the Constitution Committee, 10th Report from the Joint Committee on Human Rights
Clause 1: Quashing orders
1: Clause 1, page 1, leave out line 9
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.
This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that
“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,
and of new subsection (5), which says that
“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.
I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.
Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.
That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.
Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.
It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.
That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),
“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”
The Minister’s only answer to this conundrum in Committee was that it was
“almost incomprehensible that a court would use”
“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]
That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.
In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right
“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”
We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.
Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.
I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.
This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.
I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered
“in relation to the relevant defect”,
the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.
In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.
Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.
In Committee, the Minister said that subsection (9) is not a presumption in the sense of
“trying to fetter judicial discretion or to steer … the courts to a particular decision.”
He said that it will be
“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]
and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.
One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).
Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.
That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.
My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.
The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.
I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.
The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.
The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.
So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.
My Lords, as I have reminded your Lordships’ House before, I have no legal training and so I will use very simple language here.
I have a huge amount of respect for the noble Lord, Lord Wolfson, and I just cannot believe that he is going to convince the House that the Government are right on this because even from a simple point of view, which is what I am going to express, it seems an unjustified attack on the rule of law. Clause 1 is wrong in essence. The noble Lord, Lord Faulks, mentioned an extra club in the bag for judges. I immediately thought of one of the clubs that early humans would have carried around to kill wolves or whatever, but of course he meant a golf club. I can see that he might think an extra golf club is useful, but judges do not need it. Judicial reviews are already difficult, by design, to bring. There are very short timescales in which any claimant can initiate proceedings, and this will reduce the impact on certainty of decision-making. The Government want these hurdles to still be in place, making it hard to win a claim, but now even if you win there is almost no point in bothering.
Restricting judicial reviews in this way will undermine good government. It prevents justice for people who have been done wrong by public authorities, and it lets wrong decisions stand, even where those decisions were unlawful, irrational or procedurally unfair. Democracy goes only so far. Without being tied to the rule of law, we face the tyranny of the majority and an elected dictatorship, which, I argue, is what we have already. My noble friend and I will vote for all these amendments, as unlawful decisions must not be allowed to stand unchallenged.
My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.
The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.
My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.
As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.
Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.
My Lords, I oppose these amendments. The power to make a prospective quashing order brings clear benefits. Such an order has more teeth than a mere declaration that a Secretary of State has acted unlawfully. It would be able to indicate that regulations will be quashed within a certain time from the date of judgment unless the Secretary of State in the meantime has properly performed his statutory duties and considered in the light of that exercise whether the regulations need to be revised and, if so, in what form. It is hard to see why that is not beneficial.
Further, the ability to make such orders will be especially useful in high-profile constitutional cases where it would be desirable for the court explicitly to acknowledge the supremacy of Parliament, and in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. I note that in his powerful piece in the Times last week, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, wrote that he strongly supported giving the court these powers. As he explained, these powers are not quite so radical as some suggest and, as we have heard, judicial review has always been a discretionary remedy.
The noble and learned Lord pointed out that
“high-profile cases well illustrate how discretion may properly be exercised against giving relief that would have disproportionate consequences for past events”.
He pointed to two examples:
“In Hurley and Moore … in 2012 the Divisional Court declined to quash the ministerial order permitting universities to increase student fees to £9,000. Quashing, the court said, ‘would cause administrative chaos’”.
He also explained that as long ago as 2005 in the House of Lords, in the case of Re Spectrum, seven of the court
“recognised that prospective overruling of erroneous decisions could be necessary”—
I stress that word—
“in the interests of justice where the decision would otherwise be ‘gravely unfair and (have) disruptive consequences for past transactions or happenings’. Although it was not exercised in that case, the power was recognised by five”
members of the court. It will ensure sensible, good administration. It will not bring injustice. These are real benefits.
As for the presumption, I have listened carefully and with the greatest respect to the noble and learned Lord, Lord Judge, but on this occasion I must differ from him. It is only a presumption; it means merely that the court must start from there. It is, as my noble friend Lord Faulks explained, a flag; it points it out; it reminds the court. It does not impose a destination. If there is good reason not to make such an order, the court will be obliged to follow its conscience and depart from the principle—but, if there is not good reason, why should there be a problem? In short, the court is simply prompted to do what good reason dictates.
This clause does not damage the rule of law. It is reasonable and just.
My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.
There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.
Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.
I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.
So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.
My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.
This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.
I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.
The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power
“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]
really captures what the clause is intended to achieve.
Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.
The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.
Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.
The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.
First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,
“unless it sees good reason not to do so”;
the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.
The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.
The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.
I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.
My Lords, before I seek to test the opinion of the House—which I propose to do—I will make two short points. I do not accept that there is no distinction between a suspended quashing order—which we accept is sensible in the interests of what the Minister referred to as remedial flexibility—and a prospective-only quashing order. The remedial flexibility in a suspended quashing order addresses entirely the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in his article in the Times, and also addresses the point made in the Ahmed case, as explained by the noble and learned Lord, Lord Hope of Craighead, in Committee.
The objection, in answer to the noble Lord, Lord Faulks, to the prospective-only quashing order is not only that his independent review recommended suspended quashing orders, but it did not recommend prospective-only quashing orders. The important objections to prospective-only quashing orders are, first, not that they give the judges too much power, but that the power they give is to validate unlawful action before the date on which the quashing order is made—action that is ex hypothesi unlawful because that is what the court determines. Secondly, they would deprive litigants of a remedy if they have already suffered from the unlawfulness before the date of the quashing order.
The Minister said, incomprehensibly, that he stood by the answer that a quashing order would be made in the tax case. We say that the tax case illustrates the very danger of the court having the power to quash prospectively only. For those reasons, I respectfully seek the opinion of the House.
Amendments 2 and 3
2: Clause 1, page 1, leave out lines 15 to 18
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
3: Clause 1, page 2, line 2, leave out “or (4)”
Member’s explanatory statement
This amendment, and others in the name of Lord Marks to Clause 1, would remove the power to include provision in quashing orders removing or limiting their retrospective effect (“prospective only quashing orders”).
Amendments 2 and 3 agreed.
4: Clause 1, page 2, leave out lines 24 to 32
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or prospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.
Clause 2: Exclusion of review of Upper Tribunal’s permission-to-appeal decisions
5: Clause 2, leave out Clause 2 and insert the following new Clause—
“Limitation of review of Upper Tribunal’s permission-to-appeal decisions
(1) In the Tribunals, Courts and Enforcement Act 2007, after section 11 insert—“11A Finality of decisions in exercise of the supervisory jurisdiction(1) Subsection (2) applies in relation to a decision by the Upper Tribunal to refuse permission (or leave) to appeal further to an application under section 11(4)(b).(2) Subject to subsections (3) and (4), a decision made by the court of supervisory jurisdiction in relation to any such refusal by the Upper Tribunal, whether such decision of the court of supervisory jurisdiction is to refuse permission to proceed or is to dismiss the substantive claim in the supervisory court or is any other order, is final and cannot be questioned or set aside or reversed whether by way of renewal or appeal or otherwise.(3) An appeal lies to the Supreme Court from any such decision of the court of supervisory jurisdiction but only with the leave of the court of supervisory jurisdiction or of the Supreme Court; and such leave may not be granted unless it is certified by the court of supervisory jurisdiction that a point of law of general public importance is involved in the decision and it appears to that court or to the Supreme Court, as the case may be, that the point is one which ought to be considered by the Supreme Court.(4) An application to the court of supervisory jurisdiction for leave to appeal to the Supreme Court must be made within the period of 7 days beginning with the date of the decision of the court of supervisory jurisdiction and an application to the Supreme Court for such leave must be made within the period of 7 days beginning with the date on which the application is refused by the court of supervisory jurisdiction.(5) In this section—“decision” includes any purported decision;“supervisory jurisdiction” means the supervisory jurisdiction of—(a) the High Court in England and Wales or Northern Ireland, or(b) the Court of Session in Scotland,and “the court of supervisory jurisdiction” is to be read accordingly.”(2) The amendment made by subsection (1) does not apply in relation to a decision (including any purported decision) of the Upper Tribunal made before the day on which this section comes into force.”Member’s explanatory statement
These amendments retain the Cart supervisory jurisdiction but, subject only to a limited right to apply for permission to appeal to the Supreme Court, bar any appeal from the court exercising the supervisory jurisdiction or any other challenge to decisions of that court whether by way of renewal or otherwise.
This amendment is supported by the Law Society, the Bingham Centre for the Rule of Law and the Public Law Project.
Amendment 5 is intended to strike a middle course between, on the one hand, the abolition of the Cart supervisory jurisdiction of the High Court in England and Wales, and the Court of Session in Scotland, subject only to the three exceptions specified in proposed Section 11A(4) of the 2011 Act, and, on the other hand, the full retention of the existing Cart supervisory jurisdiction. My amendment would maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from a refusal of permission to appeal or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court, such as interim relief. The one exception is that following a debate in Committee, and at the suggestion of the noble Lord, Lord Pannick, the amendment now provides for an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal. My amendment provides for a very short timetable of seven days for an application for leave to appeal.
My amendment would curtail the amount of judicial time currently spent on hopeless Cart cases. In one important respect, it would impose a more restrictive regime than that in Clause 2, as it does not make any exceptions as are to be found in subsection (4). Those exceptions give rise to concern, as it can be predicted, particularly in immigration and asylum claims where the objective is often to string out matters for as long as possible, that many applicants will claim to fall within one or more of the three exceptions, even if hopeless, and the High Court would have to adjudicate such claims, and with a right to apply to the Court of Appeal for permission to appeal.
Critically, retaining the restricted supervisory jurisdiction, as proposed in Amendment 5, would help to avoid injustice. The Ministry of Justice’s best estimate, based on the nine years from 2012 to 2020, is that the Cart jurisdiction has been successfully invoked in between 40 to 50 cases on average each year, and on being remitted to the Upper Tribunal for reconsideration of permission to appeal, the overwhelming majority are then given permission to appeal.
You will not find any of the underlying analysis of that statistical framework in either the IRAL report or the impact assessment for the Bill. It is the combined result of a letter to me from the Minister of 18 February 2022 and a recent, helpful Teams meeting between myself and two members of the Bill team. I am extremely grateful to the Minister and the Bill team for engaging with me in trying to understand what the figures were. As far as I am aware, the only publicly stated basis for the Minister’s rejection of my proposed middle course is his assertion at Second Reading that abolition of Cart jurisdiction would save 180 days of judicial time. I am afraid that although the Minister has cited that figure in good faith, it is likely to mislead in the context of the current debate. I am not going to go into the underlying analysis of the figures, but I will simply cite those agreed by me and the relevant persons in the Bill team regarding the time taken up by Cart cases. It is clear from both the Minister’s letter of 18 February and the Teams meeting that I mentioned that between 140 and 150 judicial days each year, not 180, are spent on Cart cases in the High Court. Moreover, even the figure of 140 to 150 days includes 40 to 50 Cart applications which are successful, as well as cases that would fall within the three categories of excluded cases in Clause 2.
An alternative way in which this has been put to me by the Ministry of Justice is that if the Cart jurisdiction was abolished there would be a saving at the High Court level of some 750 Cart cases. Again, this may be, completely unintentionally, misleading in the context of the current debate because, on average, 99% of Cart cases over the nine-year period I mentioned were dealt with on the papers, and the Ministry of Justice has estimated that it would take less than one and quarter hours to dispose of each of those applications. It should be remembered that the figure of 750 includes successful Cart applications and those within the three categories that would continue to operate under Clause 2.
Of critical importance in the present debate is that it is agreed that 40 to 50 cases, which provided the balance of the 180 days originally relied upon by the Minister, are successful Cart applications which are then remitted to the Upper Tribunal for reconsideration of permission to appeal. Where there is established case law against the claimant at the level of the Court of Appeal, inevitably leading to a refusal of permission to appeal by the Upper Tribunal, the inability to take a case to the Supreme Court could be very damaging to the development of the law.
I give one graphic example: a case in 2010 in the Supreme Court, HJ (Iran). What was under consideration was the test under the 1951 refugee convention for gay asylum seekers. The long-established law at the level of the Court of Appeal was that an asylum claim by a gay man could not succeed if he could reasonably be expected to be discreet as to his gay activity, and discreet behaviour would not result in any action by the state authorities. The claim in that case inevitably failed before the Asylum and Immigration Tribunal and the Court of Appeal, but in the Supreme Court a fundamentally new approach was laid down: that where a claimant does not wish to modify his behaviour if returned to his home country, he has a well-founded fear of persecution within the 1951 convention, as a member of a particular social group based on sexual orientation.
Standing back from the detail and ignoring a substantial number of deputy High Court judges, the truth of the matter is that 140 to 150 days on Cart cases or, putting it a different way, 750 Cart cases, 99% of which are dealt with on the papers, represents a small proportion of judicial time on average per year for the full cohort of Queen’s Bench Division High Court judges. The middle course I propose is therefore just and proportionate. I beg to move.
My Lords, the IRAL came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court. It made the recommendation in relation to Cart and the case of Ahmed only, despite a number of other cases which were drawn to the panel’s attention as being possibly wrongly decided. As I pointed out in Committee, this was also the view of Lord Carnwath, who had specialist knowledge of the genesis of the Upper Tribunal. I believe it is the view of many, though of course not all, judges.
There are, as we have heard from the noble and learned Lord, a cohort of judges who have to consider what are almost always hopeless applications. They consider them very conscientiously. There may be an argument as to how much time precisely is spent and at what cost, but with very great respect, I am not sure that that is the point. The applicants have, in effect, already had three bites of the cherry. In the extremely unlikely event that a specialist tribunal has made an egregious error of law, I am sure the House will be aware of the fact that the qualified ouster clause contained in Clause 2 provides that, if there is a bad faith decision by the Upper Tribunal or one that is procedurally defective in a way as to amount to a fundamental breach of the principles of natural justice, there will still be an opportunity to challenge it. For the most part, there will not be.
Of course, I have enormous respect for the noble and learned Lord, Lord Etherton, and other noble Lords who support this amendment, but I respectfully submit that we need to grasp the nettle. The poor prospects of success have not deterred applicants from making Cart judicial review applications in the past. I accept that this amendment would further reduce the avenues of challenge, but it would not, I suspect, put anybody off. I am sorry to say that this amendment seems to be something of a fudge. It will frustrate the purpose of the Bill. I fear that, if passed, a Cart JR application will continue to be the most popular JR application. The IRAL found that, of all the possible avenues of judicial review, this is the most popular and that statistic has not been challenged. Perhaps that is not surprising. If you are seeking asylum, it is not surprising that you would seek out every avenue in the hope that you would somehow be successful the next time.
On Amendment 6 from the Labour Front Bench, the potential review which this amendment envisages seems almost impossible to provide—although, no doubt, hard-working civil servants diverted from many other tasks would do their best if this amendment were to become part of the Bill. An asylum application will of course usually involve arguments that include references to Articles 3 and 8 and possibly even the Equality Act. By definition, these arguments have been rejected at all stages of the process. What precisely is this report supposed to do? Is it supposed to conduct a quasi-appeal of all those decisions? How will the material be obtained to enable the report to be provided? With great respect, the House really needs to know how this work will help, before committing the Government to an expensive and possibly fruitless exercise.
My Lords, I support the amendment in the name of the noble and learned Lord, Lord Etherton, to which the noble Lords, Lord Pannick and Lord Ponsonby of Shulbrede, and I have added our names. I suggest that the amendment is a sensible compromise between abolishing Cart JRs altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.
We see and acknowledge the risk posed by large numbers of unmeritorious challenges to decisions of the Upper Tribunal dismissing appeals from the First-tier Tribunal, but believe that risk has been exaggerated by the Government, in terms of both the time and judicial resources expended on Cart JRs, as the noble and learned Lord, Lord Etherton, has explained, and the low success rates, which are contended and relied upon by the Government. In particular, we doubt that the Government’s figures take into account the full overall impact of successful JRs on the judicial review climate as a whole, particularly in the area of immigration, to which Cart JRs generally apply.
The Minister is not alone in overestimating the time and judicial resource that would be saved by the abolition of Cart reviews. I say now what I should have said during the debate on the last group: I am very grateful to the Minister for the time he spent discussing with us the issues arising in this Bill, including on Cart reviews. However, in spite of those discussions, we agree with the noble and learned Lord, Lord Etherton, that any savings achieved by the abolition of Cart JRs are not worth tolerating the injustice that would be caused by their abolition. Every successful Cart application signals an injustice that would be done to a future applicant were this clause to be enacted.
As many of us said in Committee, this clause, unamended, would set an ugly precedent for ouster clauses in future legislation, building on the general purpose template in this clause, which is designed to insulate unlawful executive action from judicial review. I suggest that the amendment moved by the noble and learned Lord, Lord Etherton, elegantly avoids that pitfall and it is very important that we support it for that reason, as well as others.
The bar to launching a Cart review is and will remain high: the applicant for judicial review always has to surmount a difficult hurdle in securing permission to bring an application. That is as it should be, given the nature of the supervisory jurisdiction. Indeed, the conditions set out in the Cart case itself were restrictive and stringent, and they will not change. The provision outlined by the noble and learned Lord, whose amendment would allow for an appeal from a decision of the supervisory court directly to the Supreme Court only, in the most limited circumstances only and subject to very short time limits, is a sensible safeguard—and no more—to ensure that important points of law can be considered by the Supreme Court in appropriate cases. I suggest that the Government should not be concerned about that.
Amendment 6, to be spoken to by the noble Lord, Lord Ponsonby, seeks a review of the operation of the provisions in Clause 2, with particular reference to the consequences for persons with protected characteristics under the Equality Act 2010 and the enforcement of rights under the Human Rights Act 1998. We support it in principle, but of course we await hearing from both the noble Lord, Lord Ponsonby, and the Minister on this.
My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.
There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.
The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.
My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.
My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.
The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.
In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.
I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.
Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.
While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.
Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.
With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.
I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.
Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.
The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.
Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.
I should like to make three essential points by way of reply to what has been said. I am extremely grateful to those Members of the House who have supported my amendment.
The noble Lord, Lord Faulks, highlighted what is for him, and I think in government policy terms, critical: that it is said that the success rate is too low. This raises the question: at what price do we value justice? We are agreed that 40 to 50 cases each year have been wrongly refused permission to appeal by the Upper Tribunal. In the case of severely important asylum claims and human rights cases, those 50 cases represent all the trauma that is gone through by a complainant. If one has sat in court and listened to the stories of people who have made the most extraordinary efforts to get to this country, seeking asylum, going from place to place trying to get here, one will know that refusal of a Cart review as one of the 50 is a real denial of justice.
Yes, there are very many cases—too many cases; we are all agreed on this—of unmeritorious applications by way of Cart, but we have to find a balance which takes into account the injustice that will be suffered by even one person, let alone 50 people, in these most serious of cases which involve such a long time and, in many cases, severe trauma.
There are those who recall the biblical admonition: “Justice, justice you shall pursue”. That is what I have spent my entire career attempting to do, particularly as a judge. I do not accept that the middle course is paying too high a price for the justice that would otherwise be denied to the categories of people for whom I have been speaking. My presentation—my middle course—is for those people who would otherwise suffer.
My last point is this. Attractively though the Minister has put it, that there are three bites of the cherry is not entirely correct. The modern method of appeal from tribunals is an appeal from a decision in an asylum case from the Lower Tribunal, then to the Upper Tribunal and then to the Court of Appeal. On his analysis, the Court of Appeal hearing would be a third bite of the cherry, but that is standard procedure. I do not accept that a third review of tribunal cases is in any way unusual. I wish to test the opinion of the House.
Amendment 6 not moved.
Clause 3: Automatic online conviction and penalty for certain summary offences
7: Clause 3, page 5, line 37, at end insert “and
(b) it is not a recordable offence, as specified in the Schedule to the National Police Records (Recordable Offences) Regulations 2000 (S.I. 2000/1139).”Member’s explanatory statement
This amendment seeks to exclude any offences which are recordable from the automatic online conviction option.
My Lords, this whole group of amendments is about criminal procedure divisions. It is not my intention to press any of these amendments to a vote, but to look at the broad sweep—if I can put it like that—of the way the various elements of the emergency legislation for Covid, for example, and other things are being put into criminal procedures on a more permanent basis. I remind the House that I sit as a magistrate and I have personally sat in the Covid emergency-related courts over the last two years.
I will go through these amendments relatively quickly, even though they are important amendments. Amendment 7 seeks to exclude any offences that are recordable from the automatic online conviction option. The existence of a criminal record can, for example, seriously undermine someone’s chances of finding employment, especially in certain sectors and professions, including nursing, social care, childminding and teaching; of accessing educational and training opportunities; of obtaining certain types of insurance; or of having the ability to travel to certain countries. For non-UK citizens, criminal records can affect their right to remain in the country. If the automatic online procedure is introduced, it is crucial that it applies only to those offences for which convictions are unlikely to have an impact on individuals’ rights and opportunities. It is in that spirit that I tabled Amendment 7.
Amendments 8 and 13 are also probing amendments, of which I gave notice to the Minister yesterday, to question to what extent courts will be required to share information with the media and public about cases that have an online or written element. Concerns have been raised that the Bill could damage the principle of open justice and access to the courts’ information. As the Minister knows, this was raised with me only yesterday by the Guardian Media Group; I received a briefing on this matter, which I forwarded to him. I will not go through all the points that are raised in the briefing, but there is a concern that, if the Bill becomes law, it will mean an end to many first appearances in the criminal courts, with the consequential significant reduction in information provided to the media. Various examples are given in the briefing. Although the Minister pointed out in Committee that HMCTS has guidance on this matter, the reality is that there is nothing in the Bill that requires the steps in the guidance to be taken. The purpose of these amendments is to encourage the Minister to give a fuller explanation of the way the media will get access to the courts.
I move on to Amendment 9, under which the accused must have obtained the age of 18 when charged to enter a guilty plea in writing under Clause 4. Children are inherently vulnerable in nature and possess a well-evidenced propensity to plead guilty, notwithstanding the evidence or potential defences—that is in the briefing that I have from Justice. I have to say, talking as a youth magistrate, I think that children also plead not guilty when they are not properly advised. Lawyers need to spend time with youths to get them to explore the impact of whatever their plea is going to be. I have seen ill-considered pleas, if I can put it like that, so I think it is very important that they are properly advised before they make a plea in court. As the chair of the Justice Committee, Sir Robert Neill, pointed out at Second Reading in the House of Commons:
“What is the logic in using the age of 18 in one provision and 16 in a provision that covers broadly similar grounds? We need particular safeguards for dealing with young offenders, to ensure that they do not enter a plea that is not fully informed, either through immaturity or a lack of good advice, as that could have permanent consequences for their future.”—[Official Report, Commons, 26/10/2021; col. 206.]
Amendment 10 proposes:
“Within two months beginning with the day on which this Act is passed, the Secretary of State must commission a review and publish a report on the effectiveness of the single justice procedure.”
As I said, this is a probing amendment to give the Minister an opportunity to commence a review of the procedure to see whether he is satisfied that it is bedding in properly and functioning in an appropriate way. Amendment 11 would guarantee that defendants have access to legal advice before submitting a plea under the provisions of Clause 6. Amendment 12 would ensure that an accused person is informed not only about the consequences of giving or failing to give a written indication of plea but the potential legal and practical consequences of pleading guilty.
Various pressure groups, if I can call them that, have expressed concern about the written procedure of indicating a plea of guilt without proper advice. The Law Society contends that unrepresented defendants will not have the necessary legal knowledge to know whether they are in fact and in law guilty of an offence. Without legal advice, a defendant will likely not understand the full implications of their decision to indicate a plea and the possible consequences of entering a guilty plea. A seemingly innocuous decision made in writing or online could have significant consequences for the defendant.
I know that the Minister’s response to that point will be to say, “They do it in regular courts, so what is the difference here?” But the answer to that point is the ease of doing something by accident. When you physically go to a court, even if you are unrepresented, the environment is such that you know that you are involved in a serious matter, and there is also an opportunity for interaction with judges or magistrates. Certainly, in my experience, they will explore the plea, whether guilty or not guilty, to see whether people understand what they are saying when they respond to the question. The concern is that when this procedure is online there is a temptation to press that button without being aware of the consequences, and that concern is addressed by Amendments 11 and 12.
Amendment 14 would delete Clause 8, thus removing the written procedure for children for indicating plea and determining the mode of trial. Clause 8 would allow children to use the new allocation procedure. That is despite the fact that existing law rightly affords children additional productions and safeguards to reflect their inherently vulnerable nature and well-evidenced propensity to plead guilty—although I question that last point, even though I am reading out that briefing. The point is the same one: people need to be properly advised and understand the gravity of the situation. When dealing with allocation, it is an opportunity for everyone, and children in particular, to fully understand the situation that they are in.
Amendment 15 would delete Clause 9(5), which will introduce a power for the court to proceed with allocation proceedings in the absence of a child defendant. This is a similar point to the one I have just made. We are not convinced that the supposed merits of having a child absent when this decision is made outweigh the risks of disadvantage and lack of safeguards. This is repeating the point I made on the earlier amendments that, certainly in my experience, when a court is deciding on allocation, it sometimes goes into some level of detail on the case itself and it is absolutely right that the young person—and the parents, I might say—should be present when that is being heard. One thing I absolutely always do when I am in youth court is make sure that the parents understand what is being said against the youths, because the youths do not necessarily tell the parents why they are there in the first place. So I think it is an important piece of procedure.
“would ensure that the new increased magistrates’ sentencing powers would be subject to regular reporting on their impact, including with respect to those with protected characteristics, every four months.”
The noble Lord, Lord Wolfson, argued that the Government already publish data, but I will read out the data that is published. The Government currently collect the following data: first, quarterly data on custodial sentences and average sentence length in criminal courts; secondly, cross criminal justice system scorecards; and, thirdly, criminal justice outcomes data. So, those data which are currently collected will not measure the impact of the increased sentencing powers for magistrates; there needs to be a more specific approach to properly capture those increased sentencing powers, and that is the purpose of this amendment.
Amendment 18 would delete Clause 14, alongside the deletion of Clause 8. I have spoken to this already; it is consequential on the earlier amendment.
Finally, Amendment 37 would provide that, before local justice areas are abolished, the Lord Chancellor must: undertake a consultation with relevant stakeholders; lay before Parliament the report and findings of such consultation; and provide a response explaining whether and how such issues which have been identified would be mitigated. I will say a little more about this amendment. I had thought this was a relatively innocuous amendment. Noble Lords may be aware that magistrates are arranged in local justice areas. My local justice area, for example, is central London, where there are about 300 magistrates. We have a bench chairman, elected by us, and she has a pastoral role and an administrative role in managing all the magistrates within that local justice area.
I understand that this is going to be reviewed, but the argument for doing away with this structure and moving to structure that is more similar to other tribunals is that it would make the process more flexible. But the point I made in Committee, which I repeat now, is that my experience as a current panel chairman of the Greater London family panel—I have about 300 family magistrates who I am currently responsible for—is that every single day I am dealing with pastoral matters. I think it is an important role and I very much hope it will be retained in whatever future structure is landed on, but I understand there will be consultation. I beg to move.
I wish to speak very briefly to Amendment 17. As I think I said previously, there has been thought of moving sentencing powers up for some 15 to 20 years. It is of paramount importance that we have a proper analysis of the effect of this. The effect could be serious not only for the prison population but for the individuals concerned. I hope, therefore, even if the Minister cannot respond now, that officials in his department will come back with some reliable reporting mechanism so that the effect of this change can be analysed. I warmly support it, but if it goes wrong—and that has always been the worry—there must be proper data. Asking for it now, I hope, will ensure that it is thought through carefully and provided in due course.
My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.
I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.
The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.
That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.
What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.
I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.
Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.
The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.
In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.
Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.
Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.
Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.
Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?
I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.
Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.
Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.
Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.
The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.
Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.
Amendment 17, on magistrates’ court sentencing powers, would require reporting to Parliament every four months on the operation of extended magistrates’ court sentencing powers, including on the impact of sentencing outcomes, particularly of those with protected characteristics. The extension is being effected by commencing—as we heard from the noble and learned Lord, Lord Thomas of Cwmgiedd—existing provisions in primary legislation. As the noble and learned Lord reminded us, this provision has been around for some time. It is not new. I can confirm in terms that we will be monitoring the impact of the extension on both a regular and an ongoing basis.
As to data, we already publish relevant data on GOV.UK. Each quarter, we publish data on custodial sentences and average sentence length in criminal courts. Annually, we publish separate data for magistrates’ courts and Crown Courts. We will continue to do that; we will take this data into account in our monitoring. We think it would be disproportionately burdensome—
My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.
My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.
Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.
I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.
I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.
There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.
I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.
Amendment 7 withdrawn.
Amendment 8 not moved.
Clause 4: Guilty plea in writing: extension to proceedings following police charge
Amendment 9 not moved.
Amendment 10 not moved.
Clause 6: Written procedure for indicating plea and determining mode of trial: adults
Amendments 11 to 13 not moved.
Clause 8: Written procedure for indicating plea and determining mode of trial: children
Amendment 14 not moved.
Clause 9: Powers to proceed if accused absent from allocation hearing
Amendment 15 not moved.
Clause 13: Maximum term of imprisonment on summary conviction for either-way offence
16: Clause 13, page 34, line 24, leave out “by section 224(1A)(b)” and insert “in respect of the offence by section 224(1)”
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).
Amendment 16 agreed.
Amendment 17 not moved.
Clause 14: Involvement of parent or guardian in proceedings conducted in writing
Amendment 18 not moved.
Clause 39: Discontinuance of investigation where cause of death becomes clear
19: Clause 39, page 53, line 27, leave out “follows” and insert “set out in subsections (2) and (3)”
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.
Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.
The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.
Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.
My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.
Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.
Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.
My Lords, I rise to speak briefly to Amendment 28 standing in my name. I would be grateful if the House would indulge me just for a few minutes. As I explained last week when I was presenting my Private Member’s Bill, Public Health England pointed out that, in just one year, there were 409 suicides related to problem gambling. Your Lordships will be aware that the largest lobby group here in the House is Peers for Gambling Reform. Whenever we have tried to deal with this, one thing we keep hearing back is that we simply do not have the statistics or the data on the various causes of suicide. For some while, I have been trying in every way I can to get at least some data to help us with this so that we can devise strategies to reduce the terrible burden on families who have lost a young person.
The noble Lord, Lord Ponsonby, is right that most of those who have taken their lives are young men, but it is now becoming clear that this is quite a significant problem also among younger women. It is partly because the ubiquitous gambling adverts are now spreading into women’s magazines and so on—it is just all over the place.
I shall be brief, because the Minister addressed some of the concerns in responding to my Private Member’s Bill, the Coroners (Determination of Suicide) Bill, last Friday, but there are some important differences in this amendment, which is my attempt to respond to points that the Minister made. Unlike my Bill, the amendment would permit, but not require, coroners to record factors relevant in a death by suicide. Other differences between the amendment and the original Bill include provisions to ensure that the jury would no longer have any say in the consideration and recording of relevant factors and that the consideration and recording of factors by the coroner would now occur outside the inquest process and not disrupt the traditional remit of an inquest to determine how, what, when and where in relation to an unexplained death.
Finally, the amendment would require the Secretary of State to issue guidance on which factors relevant in a death by suicide could be considered and the form in which they would be recorded by a coroner. Strict data protection provisions are included to prevent the identity of the deceased being disclosed or deduced in any way.
The purpose of this amendment is to allow factors relevant in a death by suicide to be recorded in a standardised and safe way, looking at the comorbidities, for the purpose of collecting data that will contribute to a much better understanding of the factors that are driving suicides here in the UK.
It is interesting that, despite the reluctance of the Government to give way on anything on this matter, some coroners, locally, are already recording this data. I have here the sheet that they use, with all the different factors written down. I received this from one of the coroners in my diocese. They are already able to do this. The point is that it is already permitted—or at least there is no provision stopping it—but because it is just done locally, and at the choice of the coroner, there is a lack of central oversight on how and what is being recorded, and a lack of a central database to securely record the factors that underly death by suicide.
This amendment would enshrine in law what is already technically permitted, while providing a sensible framework to securely record these factors in a co-ordinated and standardised manner across separate coronial jurisdictions, and to allow for this data to be centrally recorded and then published for research purposes without compromising the identity of any of the deceased. Personally, I think this is a sensible approach. It does not compel coroners to record these factors and it occurs outside of the inquest process, with no input for the jury.
I know that the Minister has concerns about mandating coroners and interfering with the inquest process. However, since the amendment does neither of those things, I hope that he will address the points I have just made to see whether this amendment really does create a simple framework for something that is already allowable.
What matters—I am sure that the Minister will agree—is that we find mechanisms to produce good-quality data on the factors driving suicides so that we can try to devise strategies to reduce the number of suicides. This amendment contributes to that goal. I look forward to hearing what the Minister has to say.
My Lords, I want to say how much I support the right reverend Prelate the Bishop of Albans in his campaign against gambling. He is energetic in that cause, and I very much respect him for it. He comes up against the nature of inquests, hallowed over many years, which are restricted to inquiring who, where and when. They do not even include the question that is emblazoned upon my family crest: ar bwy mae’r bai—“Who can we blame?”
When we leave this building, we should look at Westminster Abbey and realise that it was not built at the time that the procedures of inquests were begun. The coroner remains in charge of his inquest. He may discontinue, he may decide the inquest on the papers, or he may utilise audio or visual means to do so—all he has to do is notify interested parties that the coroner is satisfied; those are the statutory words. He does not have to give reasons. In particular, he does not have to have the consent of the family members—those who are bereaved and for whom an inquest is a most important matter in their lives. I support the amendments in the name of the noble Baroness, Lady Chapman, which, very sensibly, require the consent of interested persons to the coroner making his decisions in the areas that I referred to, and require him to give reasons for those decisions. I leave it to others to expand.
My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.
As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.
For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.
Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.
Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.
Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.
Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.
All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.
Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.
I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.
The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.
For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.
I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.
As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.
I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.
I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.
Amendment 19 agreed.
20: Clause 39, page 53, line 33, at end insert—
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.
Amendment 20 agreed.
Amendments 21 and 22 not moved.
Clause 40: Power to conduct non-contentious inquests in writing
Amendment 23 not moved.
Clause 41: Use of audio or video links at inquests
Amendment 24 not moved.
25: After Clause 44, insert the following new Clause—
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased, and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.
My Lords, this group of amendments is about legal aid provision for bereaved people in inquests. The new clause introduced by Amendment 25 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation in inquests, where public bodies such as the police or a hospital trust are legally represented. The new clause introduced by Amendment 26 would remove the means test for legal aid applications for legal help for bereaved people at inquests. The new clause introduced by Amendment 27 would bring the Legal Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of “family” used in the Coroners and Justice Act 2009.
This is a very important group of amendments and it is my intention to test the opinion of the House on Amendment 25. As Inquest and others have warned, the new coroners’ provisions contained in this Bill could exacerbate the difficulties already faced by bereaved families who are not eligible for legal aid during the inquest process. It is therefore more imperative than ever that an amendment be accepted to finally introduce equality of arms to inquests and provide automatic, non-means-tested public funding for bereaved families and people where the state is an interested person.
The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process; others use crowdfunding. The Bill represents a timely opportunity to positively shape the inquest system for bereaved people by establishing in law the principle of equality of arms between families and public authority interested persons. It is no longer conscionable to continue to deny bereaved families publicly funded legal representation where public bodies are legally represented. It is a very simple point, which has been made in numerous previous Bills. We have an opportunity here. I beg to move Amendment 25.
My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.
My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.
I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.
I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.
My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.
I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.
Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.
We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.
I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.
Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.
For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.
My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.
He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.
The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.
Amendments 26 to 28 not moved.
29: After Clause 47, insert the following new Clause—
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.
My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.
There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.
In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.
There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.
My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.
My Lords, we very much welcome this amendment and thank the Minister very much for responding so positively to the suggestion. There was never any justification for a distinction between tribunals and courts in this regard. Also, the House has every reason to be very grateful to the noble and learned Lord, Lord Etherton, for pushing the point and bringing it to such a successful conclusion.
My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.
My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?
My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.
More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.
Amendment 29 agreed.
Clause 49: Extent
Amendments 30 and 31
30: Clause 49, page 58, line 24, leave out “and” and insert “to”
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.
31: Clause 49, page 58, line 32, at end insert—
“(3A) Section (Payments in respect of pro bono representation)(3) extends to England and Wales and Northern Ireland. (3B) Section (Payments in respect of pro bono representation)(2) and (4) extends to England and Wales, Scotland and Northern Ireland.”Member’s explanatory statement
This amendment provides for the provisions inserted by the new clause after Clause 47 in the name of Lord Wolfson of Tredegar to extend to Scotland or Northern Ireland as necessary.
Amendments 30 and 31 agreed.
Clause 50: Commencement and transitional provision
Amendments 32 to 36
32: Clause 50, page 59, line 3, at end insert—
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.
33: Clause 50, page 59, line 4, leave out paragraphs (a) and (b) and insert—
“(a) section 13(3);”Member’s explanatory statement
This amendment results in clause 13 and its associated amendments, except for subsection (3) of the clause, coming into force by regulations rather than on Royal Assent (subject to the amendment in the name of Lord Wolfson of Tredegar at page 59, line 10).
34: Clause 50, page 59, line 9, at end insert—
“(ba) paragraphs 12 to 14 of Schedule 2, and section 18 so far as relating to those paragraphs;”Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Wolfson of Tredegar at page 59, line 3, and provides for amendments related to Clause 11 to come into force on Royal Assent.
35: Clause 50, page 59, line 10, at end insert—
“(1A) If paragraph 24(2) of Schedule 22 to the Sentencing Act 2020 (as it was enacted) has been brought in force in relation to either-way offences before the passing of this Act, the following provisions come into force on the day after the day on which this Act is passed—(a) section 13 (except subsection (3));(b) paragraphs 16 to 20 of Schedule 2, and section 18 so far as relating to those paragraphs.”Member’s explanatory statement
This amendment brings Clause 13 and its associated amendments into force the day after Royal Assent if the provisions to which it relates are in force by then.
36: Clause 50, page 59, line 15, at end insert—
“(d) section (Payments in respect of pro bono representation).”Member’s explanatory statement
This amendment provides for the new Clause after Clause 47 in the name of Lord Wolfson of Tredegar to come into force two months after Royal Assent.
Amendments 32 to 36 agreed.
Amendment 37 not moved.
38: Clause 50, page 59, line 21, at end insert—
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.
Amendment 38 agreed.
Schedule 2: Criminal procedure: consequential and related amendments
39: Schedule 2, page 76, line 4, at end insert—
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.
Amendment 39 agreed.
My Lords, I am aware that we are without the Minister, so shall we have a brief pause while he is rustled up? That will allow some people to escape the Room and, hopefully, we can track down the Minister. We are all just too efficient—that is why it has happened.