Judicial Review and Courts Bill — House of Commons, 2022-01-25
Topic: Civil Rights
Joanna Catherine Cherry (Scottish National Party, Centre-left): I commend the hon. Member for North Shropshire (Helen Morgan) for her excellent maiden speech, and for her excellent and pretty amazing by-election victory I rise to speak to amendments 1 to 3, 5 and 37, which stand in my name and those of other hon. Members. My sponsorship of these amendments arises from the legislative scrutiny of the Bill conducted by the Joint Committee on Human Rights. The Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who is the Chair of the Committee and who would normally speak to these amendments, cannot be here today because of her bereavement. I extend my deepest sympathies to her and her family, and I pay tribute to her late husband, the former Member for Birmingham, Erdington, who was a widely respected and loved man I remind hon. Members that the Joint Committee is a cross-party Committee, with half its members from the Commons and half from the other place, and we undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence from a number of people on this Bill, and we have been advised by our own legal experts. On 7 December last year we published a report, which was unanimous, so it had cross-party support from across both Houses. We concluded that if clause 1 were enacted, it would "not guarantee that an individual would receive an effective remedy for a violation of their human rights." We recommended that the Government remove the requirement in the clause "as it amounts to an unnecessary…intrusion into judicial remedial discretion." As I say, that is an informed view reached on a cross-party basis after taking evidence, and that would be the effect of amendments 1 to 3 if they were passed If amendments 1 to 3 are not passed, there is a fall-back position. We also recommended that the Bill be amended so that the courts would have to have regard to the convention rights of any person who would be affected by such a decision and the duty to provide an effective remedy for a human rights violation under article 13. That would mean that when courts decide to make a quashing order with suspended or prospective-only effects, convention rights would be required to be taken into account. That would be the effect of amendment 37, which I reiterate that we see as a fall-back if amendments 1 to 3 are not passed I turn to clause 2. The Joint Committee shares the view articulated by my hon. Friend the Member for Glasgow North East (Anne McLaughlin) about Cart judicial reviews. We reached the conclusion that judicial supervision of the upper tribunal protects against legal error. Only a small proportion of Cart judicial review applications are successful, but in some of them, individuals could be prevented from being wrongly removed from the United Kingdom to face the most heinous human rights violations in other countries We said that rather than taking a hammer to crack a nut in that way, the Government should "introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases." We also said that "every effort must be made" to ensure that the initial decision-makers and the first-tier tribunal "make the best possible decisions when cases are before them" That would limit the need for asylum seekers to rely on a third opportunity to have their application for permission to appeal considered, and it would be the effect of amendment 5 Generally on ouster clauses, which other hon. Members have spoken about this afternoon, the Joint Committee on Human Rights said in our report: "We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation" Clearly, we are concerned about the possibility of undermining the rule of law, which is essential for the protection and enforcement of human rights Before I sit down, I want to give my personal support to the amendments tabled on behalf of the Scottish National party, and to reiterate what I said on Second Reading. It is not constitutionally appropriate for the exclusion of review of upper tribunal permission to appeal decisions to extend to Scotland. The Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge), who is in his place, has conceded to me in a letter dated 10 November that clause 2 will alter the jurisdiction of the Court of Session. It is not for this place to alter the jurisdiction of the Court of Session—that is a contravention of not just the devolved settlement, but article 19 of the Act of Union The Minister will say, "Oh no—it is not a contravention of article 19 because it’s a regulation for the better administration of justice." I am sorry, but in Scotland we do not see regulations that circumscribe the availability of justice to individual members of the public as something for the better administration of justice. The Law Society of Scotland has been clear that a legislative consent motion is required; none has been sought, and none would be granted for an interference with the jurisdiction of the Court of Session Finally, as I said on Second Reading, there is no evidence base for there being any mischief in Scotland in relation to Cart judicial review; we actually call it Eba judicial review because of our case. The evidence base that the Government presented was completely confined to cases in England. If clause 2 passes, that will just be another example of this Government overriding the devolved settlement, undermining the Union. Please, Minister, leave Scotland’s legal system to Scotland’s Parliament, where it belongs.