Westminster update: evidence on Judicial Review and Courts Bill
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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1. The Law Society gives evidence on the Judicial Review and Courts Bill
On Tuesday 2 November, our head of public law, Ellie Cumbo, gave oral evidence to the Public Bill Committee on the Judicial Review and Courts Bill.
She appeared alongside witnesses from the Public Law Project and Liberty.
The session focused largely on clauses one and two of the bill, and Cumbo outlined our priority concerns regarding the:
- introduction of prospective-only quashing orders, which would deny remedy to people affected by previous exercises of an impugned power
- inclusion of a statutory presumption in favour of using suspended or prospective-only quashing orders over an ordinary quashing order, which would limit judicial discretion and remedial flexibility
Cumbo was questioned by one member of the committee, Sir John Hayes (Conservative), about politicisation of the judicial review process.
She explained that we have not seen any evidence to suggest this is the case, but made the point that the provision in the bill allowing courts to place conditions on the awarding of a suspended or prospective-only quashing order could risk inviting judges to weigh in on policy decisions.
She suggested that the government clarify how it intends this conditionality provision to work.
The witnesses were also asked about their views on clause two, which would overturn the Cart judgment.
Cumbo noted the government’s claims that the success rate for such Cart judicial reviews is low, but argued that protecting judicial resource, while an important aim, must be balanced against the need to preserve access to the courts to correct unlawful decisions.
2. Judicial Review and Courts Bill amendments considered
After hearing evidence from witnesses on Tuesday, the Public Bill Committee on Thursday 4 November began to debate amendments to the bill relating to the provisions on quashing orders in clause one.
We had proposed a number of amendments to the bill which were tabled by shadow justice minister Andy Slaughter.
Our amendments aimed at removing the power to award a prospective-only remedy and removing or reversing the presumption in favour of using a suspended or prospective-only remedy were moved and debated by the committee.
Ultimately both of these key amendments were voted down by the committee, with the members dividing on party lines.
Line-by-line consideration of the bill will continue over the coming weeks, with the provisions in clause two aimed at overturning the Cart judgment due to be considered next.
3. Shadow immigration minister raises Law Society concerns
On Tuesday 2 November, our concerns on the Nationality and Borders Bill and its likely effects on immigration lawyers were raised during the bill’s committee stage.
Shadow immigration minister Bambos Charalambous, who we have been in close communication with during the passage of the bill, said that Labour shares our concerns that “immigration lawyers are being needlessly targeted by the new costs orders and charge orders, which are not necessary and do not apply in other areas of law”.
This follows references made to our views on the legislative aspect of the government’s New Plan for Immigration in other recent sittings of the bill committee.
Neil Coyle (Labour) listed the Law Society as one of the organisations to raise concerns regarding the bill’s compatibility with the Refugee Convention, alongside UNCHR, the UN Refugee Agency, and the British Red Cross.
Additionally, Charalambous previously noted our concern that provisions in the bill would essentially result in single tier appeals, meaning increased pressure on judges and more strain on the Court of Appeal, as well as impacting access to justice.
4. Peers scrutinise Police, Crime, Sentencing and Courts Bill
Monday 1 November saw the House of Lords examine provisions in the Police, Crime, Sentencing and Courts Bill on pre-charge bail, with Lord Paddick (Liberal Democrat) putting forward a number of amendments to the legislation.
Citing our position that the timelines on extension of bail in the bill were too long, Lord Paddick moved an amendment using our suggested timeframes instead.
This would see an initial period of two months for bail, with extensions to four months authorised by an inspector and to six months by a superintendent.
A magistrates’ court would then be required to extend beyond six months.
Responding on behalf of the government, Lord Sharpe of Epsom argued shorter timelines could “clog up the courts” and said the proposed system with magistrates’ able to extend bail beyond nine months is proportionate. The amendment was not pushed to a vote.
Lord Paddick also spoke to his amendment to require greater data transparency and echoed our position that police forces should publish data on the number of people released on pre-charge bail and those released under investigation by the police.
Lord Sharpe said this information would be published annually and the government would start publishing the number of people released under investigation later this year.
Lord Paddick again did not push the amendment to a vote.