Judicial Review and Courts Bill — House of Lords, 2022-02-21
Topic: Law and Crime
Terence Etherton (Crossbench, Unknown): My Lords, may I follow my noble friend Lord Pannick, who has referred to my Amendment 23, which would replace Clause 2 with what I have called a middle course? It is intended to be a middle course between, on the one hand, the provisions of Clause 2 which would abolish—subject to limited exceptions—the Cart supervisory jurisdiction of the High Court in England and Wales and the Court of Session in Scotland and, on the other hand, leaving the full Cart supervisory jurisdiction as it currently exists Amendment 23 is tabled on the basis that to abolish all Cart supervisory jurisdiction, subject only to the three limited categories of case specified in subsection (4), could give rise to injustice. On the other hand, it recognises, from my own experience as Master of the Rolls for over four years, that applications for permission to appeal to the Court of Appeal, from the High Court’s exercise of its Cart supervisory jurisdiction, are almost invariably utterly hopeless but nevertheless involve the Court of Appeal judge in question in a considerable amount of work ploughing through the decision of the First-tier Tribunal, the decision of the Upper Tribunal and the decision of the Administrative Court The middle course that I am proposing is to retain a supervisory jurisdiction at the level of the High Court, but to prohibit, first, an application to renew or appeal a refusal of permission to bring judicial review; secondly, to prohibit any appeal from a dismissal of the substantive judicial review application; and, thirdly, to prohibit any challenge to, or renewal of or appeal from, any other decision of the High Court such as, for example, in respect of interim relief In his reply at the Second Reading debate, the Minister said that he would consider this middle course but that the Ministry of Justice had calculated that abolishing the Cart supervisory jurisdiction would save 180 days of judicial resource in the Administrative Court. I have subsequently had a useful exchange of correspondence about that assertion, and I am extremely grateful to the Minister for answering a large number of questions that I have raised, probing that claim of 180-day savings. I hope the Minister will not take it amiss, but I regard it as perfectly clear that the Minister’s estimate of the saving of judicial time is greatly overstated The Ministry of Justice relies on a number of different sources, including a 2015 time and motion study from which it has extrapolated various assumptions. I am very doubtful about the accuracy of the statistics I have been provided with and the extrapolation provided by the ministry’s correspondence but, for what it is worth, the Minister’s response includes a breakdown of Cart cases from 2012 to 2020. It shows that over that nine-year period, 99% of Cart applications for permission to bring judicial review were dealt with on the papers and not at an oral hearing. The Minister’s letter allowed just over 1.3 hours for a judge to consider a paper application. In short, the figures supplied show that on average over the nine-year period, approximately 130 judicial days each year were spent on Cart applications in the Administrative Court At full complement and ignoring a substantial number of deputy judges, there are 71 full-time judges of the Queen’s Bench Division available to sit in the Administrative Court, which would mean just under two Cart applications each year per judge. Of course, there are plenty of people here, including the noble and learned Lord, Lord Thomas of Cwmgiedd, who has been Chief Justice, who will say that that is not how the world works because only a certain number of judges sit in the Administrative Court at any one time. On the other hand, it is not the way the world works having a single judge deal with all the Cart cases in a year. The truth is that they are spread among all the judges Furthermore, proposed new Section 11A(4) in Clause 2 provides three exemptions for the abolition of the Cart supervisory jurisdiction. I have been told by the Minister that there are no statistics to show how many of the Cart cases in the period 2012-20 fell within one or more of those three categories. In the absence of that information, it is not only utterly futile to suggest that Clause 2 would result in the saving of a specific amount of judicial time; it is clear that any saving would be less, perhaps far less, than even 130 days The middle course in the amendment I have tabled would help to avoid injustice while providing a useful curtailment of the Cart supervisory jurisdiction. I suggest that this is a sensible and just solution.