Clause
12
Proceedings
on appeal to Upper
Tribunal
Mr.
Bellingham:
I beg to move amendment No. 50, in
clause 12, page 9, line 36, leave
out ‘may (but need not)’ and insert
‘must’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 51, in
clause 12, page 9, line 37, leave
out ‘if it
does,’.
No. 53,
in
clause 14, page 11, line 46, leave
out ‘may (but need not)’ and insert
‘must’.
No.
54, in
clause 14, page 12, line 1, leave
out ‘if it
does,’.
1.15
pm
Mr.
Bellingham:
The principal amendment is a simple probing
amendment that would replace the word “may” with the word
“must”. The others are consequential on it. If the upper
tribunal decides against the lower tier, it is surely not the case
merely that the upper tribunal may be able to set aside the decision.
Rather, surely it is the case that it must set the decision aside.
There should not be any “mays”, “perhapses”
or “coulds”; the word should be “must”.
That would represent better drafting and would be altogether neater and
clearer.
Vera
Baird:
The question is one of the discretion to set a
decision aside when the upper tribunal finds an error of law, and I
remind the Committee that we are concerned with matters relating to the
senior judiciary. An error of law might be found that none the less
does not render the corresponding decision incorrect. To force the
upper tribunal to set the decision aside in that situation would
clearly not be wise. I hope that those few words of explanation will
persuade the hon. Gentleman to withdraw his
amendment.
Mr.
Bellingham:
I am in a good mood, because it is a lovely
spring day. The Minister has made the Government’s intention
clear. I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn
.
Clause
12
ordered to stand part of the
Bill.
Clause
13
Right
to appeal to Court of Appeal
etc.
Mr.
Bellingham:
I beg to move amendment No. 52, in
clause 13, page 10, line 30, at
end insert—
‘(7A) The Lord
President may, as respects an application under subsection (4) for
which the relevant appellate court is the Court of Session, by order
make provision for leave not to be granted on the application unless
the Upper Tribunal or (as the case may be) the Court of Session
considers—
(a) that the
proposed appeal would raise some important point of principle or
practice, or
(b) that there is
some other compelling reason for the Court of Session to hear the
appeal.’.
The amendment is on the same
subject matter as the clause title and was recommended by the Law
Society of Scotland, of whose opinions I believe we should take due
note. It is an eminent body and it should know what it is talking
about. It is concerned that clause 13 does not contain a provision
relating to the Lord Presidency and the Court of
Session.
In the House
of Lords, Baroness Ashton kindly said that she would consider the
equivalent amendment carefully, positively and with an open mind. The
reason why we have tabled the amendment again is to remind the Minister
of those commitments, and I hope that in the spirit of good
will that is permeating the Committee the Minister will accept the
amendment.
Vera
Baird:
The amendment would extend to the Court of Session
the possibility of limiting second appeals in the way in which they are
limited for the rest of the UK. The limitation is established in
England, Wales and Northern Ireland, but there is no equivalent
provision for Scotland. The hon. Gentleman is right: his noble
colleague, Lord Kingsland proposed the same amendment in the other
place, and my noble Friend, Baroness Ashton undertook to consult the
Lord President and the Scottish
Executive.
As a result
of the consultation, we concluded that the judicially led review of the
Scottish civil courts announced by the Minister for Justice in the
Scottish Executive in March 2006 would be best placed to consider the
detail of possible application for second appeals in Scotland across
all Scottish civil courts. I hope that the hon. Gentleman agrees with
that conclusion and can be persuaded to withdraw his
amendment.
When the
hon. Gentleman referred to the Tsfayo case, he referred to a similar
undertaking made by my noble Friend, Baroness Ashton to give further
information about the case. I shall write to him about
that.
Mr.
Bellingham:
I welcome what the Minister has said. As we
have such good will from her I hope that at some stage she will say
that she will come back on Report with a Government amendment to
satisfy those points. Perhaps she can consider what I have said in the
light of tabling a Government amendment at that stage if she feels that
it is possible. I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
13
ordered to stand part of the Bill.
Clause 14 ordered to stand
part of the
Bill.
Clause
15
Upper
Tribunal’s “judicial review”
jurisdiction
Question
proposed, That the clause stand part of the
Bill.
Mr.
Bellingham:
We are now moving into an important part of
the Bill, which relates to judicial review. I do not want to anticipate
some amendments that I have tabled to clause 22, which I feel are very
important, but I want to set the scene and to point out
to the Minister that judicial review is an important part of our
jurisprudence and whole legal system.
Any student at the Bar or
trainee solicitor is taught about judicial review from the earliest
stage. It is a vital part of our law and this piece of the Bill has to
be regarded in that context. Will the Minister say a bit more about how
the judicial review process will work and give us a little more detail?
How often does she expect it to be used? I do not want to go into the
detail of what we will discuss on clause 18, where we will consider the
limits of jurisdiction, but clause 15(1) sets out exactly what the
power will be and what kinds of relief will be available under judicial
review. I do not want to anticipate my amendments to clause 18, because
they are the ones that we feel strongly about. However, all these
clauses are of profound importance and I am anxious that we should not
let them go by without some explanation from the Minister. I would be
grateful if she could give that.
Vera
Baird:
Essentially, the point of enabling the judiciary to
transfer cases from the normal judicial review jurisdiction into the
upper tribunal is to harness the expertise that is likely to be
available in that forum on the special kinds of business that the
tribunal system takes care of. The provisions do not remove or resist
judicial review, but make it possible for selected judicial reviews
that would normally be heard before the High Court to be dealt with in
the upper tribunal. The powers will be the same as those of judicial
review, so the fact that it is in the tribunal system does not mean
that there will not be the power to grant mandatory orders,
prohibition, quashing orders, declarations or injunctions. The hon.
Gentleman will recall from Second Reading that the range of judiciary
available to deal with quasi-judicial reviews in the upper tribunal is
restricted to the High Court and those approved by the chief
justices.
We expect
the power to be used comparatively rarely—dozens of times at
most and certainly not in large numbers—and that its use is
likely to be confined to technical situations that would be better
dealt with by technically expert people.
Simon
Hughes:
The Minister is right, as is the hon. Member for
North-West Norfolk. This is an important development, which I do not
resist. Can the Minister say whether it is expected that this will be a
quicker procedure and, as many assume, a cheaper one? When thinking
about judicial review, people are always concerned about the potential
cost implications and the delay. There is a linked question which,
although we may debate it later, is relevant to this set of clauses, of
which clause 15 is the first. Will legal aid be available for judicial
review proceedings in an upper level tribunal, as it is normally
available for a judicial review in the High
Court?
Vera
Baird:
Will it be quicker and cheaper? One imagines that
it will be cheaper, because the informality of the tribunals makes them
quicker, generally, than courts. Whether they are quicker depends on
listing, the number of cases and the backlog in the upper tribunal.
Granted that there is frequent discussion about shortages of judicial
manpower in the High Court, one imagines that it is likely that cases
could be
heard more quickly. However, I cannot say more than that. I am told that
judicial reviews are being got to court quite quickly now. That is not
what it used to be like. I can give no promises as to whether the
process will be quicker, but it ought to be
cheaper.
The hon.
Member for North Southwark and Bermondsey asked me about legal aid.
That is an important point. There is not, on the face of it, a right to
legal aid in the tribunal system. I have raised that matter and I will
write to the hon. Gentleman, if I may, with a more comprehensive
answer. There are situations where it is probably not necessary, but
there may still be situations that he would continue to be concerned
about, so I shall write to
him.
Simon
Hughes:
I am grateful for the Minister’s
generically helpful answer. I have experience of, and am involved at
arm’s length with, a judicial review application at the moment
on a Government decision to close the 24-hour emergency clinic at
Maudsley hospital. The application was made some weeks ago and nothing
has happened yet, so my honest view is that judicial reviews do not
always swing into the courts on the next day after the
application—although some may be
quicker.
This is an
important matter. The presumption should be that a judicial review for
somebody who does not have the resources should be legally aided,
whichever tribunal is dealing with the matter. Depending on the
Minister’s answer, we would be keen to reserve the right to
return to this matter. There is general concern about some important
cases currently in tribunals. I hope that we can reach agreement and,
if not, I give notice now that we may be able to work together
to achieve an amendment on Report that would deal with the
concerns.
Vera
Baird:
There are always applications with exceptional
circumstances where ministerial discretion should be exercised.
Certainly, if I were being asked to exercise such discretion in respect
of an important technical case, one would expect it to be exercised
benevolently. It is not a desert at
present.
Question
put and agreed
to.
Clause 15
ordered to stand part of the
Bill.
Clauses
16 and 17 ordered to stand part of the
Bill.
Clause
18
Limits
of jurisdiction under section
15(1)
Mr.
Bellingham:
I beg to move amendment No. 55, in
clause 18, page 15, line 3, leave
out ‘to’ and insert ‘, 2
and’.
The
Chairman:
With this it will be convenient to discuss
amendment
No. 56, in
clause 18, page 15, line 16, leave
out subsections (6) and
(7).
Mr.
Bellingham:
This clause is important and we have decided
to table some amendments to it, because there is an overwhelming
argument for judicial review cases in the upper tribunal to be
heard only by a High
Court judge. There was substantial debate about that in the other place.
Clause 18(8) says:
“a
judge of the High Court or the Court of Appeal in England and Wales or
Northern Ireland, or a judge of the Court of Session, or...such
other persons as may be agreed from time to time between the Lord Chief
Justice”
and so on. This
amendment seeks to delete paragraph (b) which gives power to appoint
someone other than a High Court judge. Why do we feel strongly about
it? For a number of
reasons—
1.30
pm
The
Chairman:
Order. I fear that the hon. Gentleman is eliding
into another group of amendments with which the Committee is not
currently dealing. I am sure that he has done so inadvertently. I say
that in the most courteous terms and hope that he will focus on
amendments Nos. 55 and
56.
Mr.
Bellingham:
I will most certainly do so, because you are
absolutely right, Mr. Bercow, to correct me. Subsections (6)
and (7), which we are seeking to remove, lead on to the next group of
amendments. Forgive me for entering into a wider discussion about High
Court judges.
Vera
Baird:
The amendments would remove the ability of the High
Court to transfer any class of case to the upper tribunal for the
purposes that we have already started to discuss. It would be for the
Lord Chief Justice, with the agreement of the Lord Chancellor, to
designate classes of cases for which the upper tribunal would have sole
responsibility and for the High Court to decide other cases, as and
when they arise. That seems the right balance. The initiative is with
the judiciary throughout, which again seems correct.
If the amendments were carried,
it would not be possible for a class of cases to be transferred. The
whole power would not have been excluded, but it would have to be
exercised on a case-by-case basis. That seems a wasteful use of
judicial resources. As I said, the power is intended to be used only in
fairly technical cases. Classes of cases would be more likely to be
moved when there were good technical reasons to do so and not
otherwise. It seems sensible to have that power so that a tranche of
cases, which might be similar or which might have the same technical
components, could go over at once, instead of each case having to be
considered separately.
The Lord Chief Justice is
content that he can define a class of case of this nature. Therefore,
we should not gainsay that by saying that each and every individual one
ought to be considered separately. I hope that it is the
judiciary’s approval and support, which I have now brought to
the Committee, that will facilitate the hon. Gentleman’s seeking
to withdraw his
amendment.
Mr.
Bellingham:
I apologise for jumping the gun. I did not
look closely enough at the groupings. I beg to ask leave to withdraw
the amendment.
Amendment, by leave,
withdrawn.
Mr.
Bellingham:
I beg to move amendment No. 57, in
clause 18, page 15, leave out line
23.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 58, in
clause 18, page 15, line 25, leave
out from ‘Session’ to end of line
29.
No. 59, in
clause 19, page 16, line 13, leave
out ‘and 4’ and insert ‘, 4 and
5’.
No. 60, in
clause 19, page 16, line 15, leave
out ‘and 4’ and insert ‘, 4 and
5’.
No. 61, in
clause 19, page 16, line 37, at
end insert—
‘(8) Condition 5
is that the application would, if transferred, be heard by a tribunal
complying with section 18(8) of the Tribunals, Courts and Enforcement
Act
2007.’.
No.
62, in
clause 19, page 17, line 1, leave
out ‘and 4’ and insert ‘, 4 and
5’.
No. 63, in
clause 19, page 17, line 3, leave
out ‘and 4’ and insert ‘, 4 and
5’.
No. 64, in
clause 19, page 17, line 25, at
end insert—
‘(8) Condition 5
is that the application would, if transferred, be heard by a tribunal
complying with section 18(8) of the Tribunals, Courts and Enforcement
Act
2007.’.
Mr.
Bellingham:
I certainly take the view that it makes sense
to refer judicial review matters to the upper tribunal. The Opposition
broadly support what the Government are trying to do. We feel that it
makes sense and in some ways is an overdue step.
Nevertheless, this is an area
of great importance. In the past, the power to grant judicial review
has been confined to the High Court. We should look at the phrasing of
the Bill and the way in which the term “judicial review”
has been put in inverted commas in clause 15. The reason why judicial
review is so important is that it allows the individual citizen to
challenge the decisions of Departments and of other public bodies.
Judicial review cases are often extremely high-profile. One thinks of
certain recent cases that have hit the headlines, and of the occasions
when previous Home Secretaries have been overruled on judicial review,
such as when Mr. Justice Collins overruled the Home
Secretary on a matter of anti-terrorist
law.
Given the history
of judicial review and its importance in our whole legal system and our
constitution, I share the view of many other Conservative Members that
there has to be a High Court to keep the Government in check by means
of the judicial review process. An important aspect of the fulfilment
of that function is that High Court judges decide such vital issues. If
the Bill proceeds as it stands, however, matters could be decided
by
“such other persons as
may be agreed from time to
time”.
Obviously,
those other such persons will not be High Court judges, although they
will be hugely eminent and experienced, and the agreement on who they
are will be made between the Lord Chief Justice, the Lord President or
the Lord Chief Justice of Northern Ireland, or, as the case may be, the
senior president of tribunals. I do not suggest for one moment that
they will not be of the highest calibre, nor that they will lack the
advice of experienced people. Maybe the Opposition are being purist.
However, there is a
significant body of opinion in legal circles to the effect that the
decisions should be made by High Court judges, that that is what the
Bill should say expressly, and that the words that I have quoted should
be removed. If they were, the Opposition would be far more
content. Only in rare
circumstances will it be the case that such key judicial review
applications do not go before a High Court judge—once or twice a
year, maybe. Perhaps the Minister will tell us how often she expects
that to happen. It might be only once every five years. However, those
few cases could be of overwhelming importance, and in those
circumstances we believe that it would always be appropriate for them
to be heard by a High Court judge.
The Minister,
and the Department for Constitutional Affairs, might well say that
there are not enough High Court judges around and that there will at
all times be insufficient such judges to take on the task. However, if
there is such a shortage, and if there is an argument that more are
needed, there is a vast pool of talent out there. We shall shortly be
debating the widening of the pool for judicial appointments. If the
DCA’s position is based on unavailability of High Court judges,
my response is that there are easily enough people around with the
serious talent and intellect to fill the spare places on the High Court
bench.
If
the Government are concerned about a lack of judges, they should make
one or two additional appointments, which would immediately remove the
administrative concern about such a lack. We could then put the Bill to
Her Majesty in due course knowing that a very important part of our
constitution had been preserved. The ability for such cases to be
properly heard has been a part of our legal system for a very long time
indeed. It provides the modus operandi whereby citizens of this country
can actually challenge the Executive in cases that go to the root of
our freedoms. I might be getting slightly carried away, and it might be
that the matters that will come from tribunals on judicial review will
not be anything like as weighty as I have suggested, but they could be.
Given the types of issue that tribunals deal with day in, day out, it
might well be that from time to time there will be appeals on judicial
review that are pretty fundamental to the citizens of this country, our
electors and our constituents. That is why we feel strongly that, at
the very least, the Government should give a further explanation than
the one that they gave in another place. We need to be satisfied that
there is an overwhelming reason why the Bill cannot state that High
Court judges will exclusively hear the
applications.
Simon
Hughes:
I added my name to the amendment because I share
the strong views that are held about this matter. So far judicial
review is carried out only by the High Court, but using the relatively
newly developed opportunity in this country, people can use
administrative law to challenge the Executive. Citizens have the
opportunity to go to the independent judiciary to challenge the
Executive. The Executive could be a Secretary of State, an agency, a
Department or an official of the Government. That principle, certainly
in the early days of the newly structured Tribunals Service, should be
subject only to the judgment of someone who has the authority of a High
Court judge. Clause 18(8) and its condition 4 give flexibility for
other appointments.
Of course, people acting in the
best interests of the system and the post holders, such as the Lord
Chief Justice, the Lord President, the Lord Chief Justice of Northern
Ireland and the senior president of the tribunals, will obviously
consider such matters wisely. However, it should be not for them, but
for us, to decide the matter. A lot of things in the Bill could be
dealt with by secondary legislation or even rules of court or
tribunals, not primary
legislation.
However,
what we are discussing should, first, be dealt with by legislation and,
secondly, retain its present position. It is an innovation. It will
give tribunals in the upper tier that we are creating the power to deal
with judicial review applications. They are matters in which decisions
are of major significance. They could go to the highest authorities in
the land, so my request is for the Minister to reconsider the matter
and accept that for the time being and for the first five or 10 years
of the system, such a provision should be excluded. The best way in
which to do that is to support the amendment. If later experience
suggests that we can change things, we can return to the matter in the
fullness of time. I would far rather that we struck out the provision
now and kept the authority of the High Court for judicial review. I
support the
amendment.
Vera
Baird:
We do not agree. I agree with the hon. Member for
North-West Norfolk that the current provisions will guarantee the
highest calibre of judiciary in the upper tribunal to deal with
judicial reviews. I also agree that there is a significant pool of
talent able to be appointed, but this is not about personnel
availability, but about
flexibility.
The hon.
Gentleman asked how many cases we expect to be dealt with. We expect
there to be a mixture. The Lord Chief Justice will second some High
Court judges to the upper tribunals. They will do some of the work, but
many of the cases will be dealt with by the expert judges who are
already in the upper tribunal. As my noble Friend Baroness Ashton
explained in the other place, we regard a blanket requirement saying
that a High Court judge is necessary for every judicial review in the
upper tribunal as neither desirable nor necessary. The lengthy debate
in the other place resulted in a clause that now encapsulates the
principle that judicial review should be heard only by those judges who
have the experience and expertise to do so. The clause would not do
that by limiting the judges to those who are currently hearing judicial
review in the
courts.
I should
emphasise that both the senior president and the Lord Chief Justice
agreed that the amendments are workable and practical. I do not agree
with the hon. Member for North Southwark and Bermondsey, who said that
in this case the allocation of judges ought to be done by legislation;
I think that it is better done internally, by the judiciary
itself.
1.45
pm
I would also
point out to the hon. Member for North-West Norfolk that deputy High
Court judges now hear judicial reviews. Sometimes they are circuit
judges and sometimes they are QCs who are not judges at all, so we are
not exactly striking out on a new line.
The hon. Member for North-West
Norfolk has discerned a significant body of opinion in legal circles
that the ability to decide on judicial reviews ought to be confined to
High Court judges. I should tell him that the Lord Chief Justice is not
a member of that body of opinion. He
states: “Some
cases in the Upper Tribunal will need High Court judges to hear them,
and I intend to make such judges available to sit on those cases.
However, it is
imperative”
—imperative—
“that
there is flexibility in relation to the circumstances where cases
should be transferred to the Upper Tribunal, and flexibility as to who
they will be heard by. That flexibility would be disturbed if the Bill
was to include a provision limiting such cases to High Court judges,
regardless of the relevant circumstances of the case. There are some
persuasive examples of cases where judges of the Upper Tribunal will
have the expertise to handle particular cases in the most appropriate
way. Technical tax cases have, for example, been mentioned in the
course of our
discussions.”
Of
course, we would expect special commissioners of income tax and social
security—people who might hear judicial reviews in their own
area of technical expertise—to be people of the highest
imaginable calibre, as the hon. Member for North-West Norfolk said.
However, flexibility is imperative, so I invite the hon. Gentleman to
feel persuaded to withdraw his amendments because they are opposed by
the Government.
Mr.
Bellingham:
The Minister quoted from the Lord Chief
Justice and put an important point of view on the record. However, we
should continue to discuss the matter because it is of fundamental
importance. I am conscious of the fact that if we talk about it for too
long in Committee, we might jeopardise our chances of returning to it
on Report. I am grateful for the Minister’s response and the
wise words contained in it, in which spirit I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause
18 ordered to stand part of the Bill.
Clauses 19
to 21
ordered to stand part of the Bill.
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