I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendment 11. If it is agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal. Before I call the Minister, I ask hon. Members to indicate whether they want to contribute to the debate, because not many have put in.
I begin by discussing some of the key changes made to the Bill in the other place as a result of amendments brought forward by the Government and I will then turn to the other Lords amendments. Since we last debated the Bill, further measures have been added by the Government with unanimous support from the other place.
First, Lords amendment 7 seeks to give greater flexibility to the online procedure rule committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. It will enable parties who tried to resolve their dispute online prior to commencing legal proceedings, but who do not resolve some or all of their dispute, to then transfer into the legal process seamlessly.
Secondly, Lords amendment 10 will allow coroners to provide registrars with additional information to help to ensure that deaths do not go unregistered. It will address an anomaly whereby, in a small number of cases, families do not register a death when coroners authorise the disposal of a body before any formal death registration has been completed.
Finally, Lords amendment 12 will allow pro bono cost orders to be made in tribunals in much the same way as they are already available in the civil and family courts. It captures the majority of tribunals in which cost orders might be made, but it also creates a power for the Lord Chancellor to bring additional tribunals within the scope of the power through secondary legislation. I urge hon. Members to support those amendments.
A series of minor and technical amendments were also made to the Bill by the Government. I do not intend to go through them in detail, but if any hon. Member has a question about them, I will endeavour to address it in my response to the debate. [Interruption.] I shall expect a flood!
I thank those who have worked to improve this Bill during its progress through both Houses. Without embarrassing him, I would single out my hon. Friend the Member for Stockton North (Alex Cunningham), who volunteered to lead on the courts part of this Bill—that is, most of it—before he had even finished with the Police, Crime, Sentencing and Courts Bill. I would also mention the efforts of our colleagues in the other place, particularly my noble Friends Lord Ponsonby and Baroness Chapman and senior Cross Benchers, who are a large part of the reason why we are discussing successful Lords amendments today—all credit to them.
In the spirit of consensus that has been a feature of much of our proceedings, I thank the Minister and his team for at least listening and entertaining our views, even if we did not in the end see eye to eye, and for their significant concession in removing the presumption from clause 1. Since the Bill was first introduced, I have also been lucky enough to work with many individuals and organisations with particular expertise on the issues covered. I would like to put on record my thanks to the Public Law Project, Inquest, Justice, Liberty, the Bingham Centre, the Law Society and the Bar Council, but that list is not exhaustive.
The majority of amendments before the House today—Lords amendments 6 to 10 and 12 to 22—are Government amendments that amend part 2 of the Bill. For the avoidance of doubt, we do not oppose these. We had issues with part 2 of the Bill, but these were mainly procedural and are, I hope, open to correction in the light of experience. Our objections to part 1 are more fundamental, and we are grateful to the other place for highlighting these in Lords amendments 1 to 5. I will deal with these and then come on separately to Lords amendment 11.
First, by way of a little context, we see no purpose whatsoever in clauses 1 and 2 of this Bill, and it would be our preference to remove these clauses from the Bill entirely. Our attempts to do so in Committee were not successful, but our principal objections were reflected in the Lords amendments. Lords amendments 1 to 3, in the name of the noble Lord Marks, remove prospective-only quashing orders from the Bill.
It is a pleasure to follow the Front-Bench speakers in this short but important debate. I welcome the Government’s stance on presumption and their acceptance of the amendment made in the Lords. It is worth remembering that Lord Faulks, who chaired the independent review that gave rise to all these proposals, took the view that no harm was done by removing that presumption, and that thereafter the discretionary power to have a prospective-only order that can be considered by the courts if it meets the interests of justice was, as I think he put it, an extra club in the bag of the judiciary. That is the whole point of it: it extends the remedial powers available. At the end of the day the presumption was not perhaps necessary, and the Government have taken a sensible and pragmatic stance on that. The principle of having that extra flexibility in the remedy is not objectionable, and I am glad the Opposition have not opposed it.
Some of the other changes made by the Government in the Lords are welcome. The ability to make payment for pro bono representation in a number of cases is welcome, and I am glad the Government have moved in that direction. Practitioners and the judiciary alike will welcome the changes to make online procedure rules easier and swifter to deal with, so those are practical changes.
Two issues then remain, including Cart appeals and litigation. I must respectfully differ with the shadow Minister and their lordships on that, and it is perhaps worth quoting what Lord Faulks said about it in the other place—after all, he examined this issue with probably more care than anyone. His stance was that the independent review into administrative law
“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.”—[Official Report, House of Lords, 31 March 2022; Vol. 820, c. 1736.]
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Finally, having supported the Minister on all matters so far, I turn to Lords amendment 11, on legal aid at inquests, which is the one area where he knows that he and I will part company. I heard what he said about waiting to see what further consultations arise, but this has been a real and live issue for many years and the facts have been well ventilated. As he knows, I pray in aid the Justice Committee’s report, which took the view that there is an overwhelming equality of arms argument. This is a situation in which the state—or its agencies—is legally represented but the families bereaved, potentially through a failure or action of one of the state’s agencies, are not. That is not fair and, with respect, the Government spoil what is otherwise a good Bill by not taking that point on board.
The Association of Personal Injury Lawyers helpfully points out that, in reality, although inquests are strictly an inquisitorial process, they have evolved and are now, to a degree, more adversarial in nature. That is inevitable, and sometimes it arises from the state agencies who are party to the proceedings and may be responsible for the deaths. Such inquests, which are a small minority of the total number of inquests but important for obvious reasons, particularly if there is a potential failing of a public body, need to be examined with particular care. However, without legal representation, the family of someone who has lost their life as a result of something that has gone wrong may have to plough through reams of volumes of documents, which is probably quite distressing for them. It does not seem right or fair that they should be expected to do that without legal support.
I grant that there has been some movement on the lifting of the means test for exceptional funding, but in any event families still need to meet a high bar—the article 2 bar—to get exceptional funding, and that will not work for the majority of these cases. Occasionally, families have to use conditional fee agreements, but again they usually work only if there is likely to be a money claim—a successful compensation claim—that sits alongside that. In many inquests, that will not be the case, but there is a public interest in the family having a chance to explore and probe what went on, and potentially what went wrong, in the hope that that might lead to changes in behaviour by the relevant body so that such a thing does not happen again.
I appreciate that the Government pray in aid costs, but I think they are small in the overall scheme of things. These are a small minority of inquests, but they are particularly sensitive. Hillsborough is the most obvious example, but there are others of a like kind. I would have thought that the amount of public money likely to be consumed is minimal set against the importance of the quality of arms argument, which I think we all regard as pretty fundamental to the fair working of the system.
I am sorry that the Government have not moved as far as they could, and I hope that the Minister will indeed pursue the consultations that are going on, but I do not think we need to wait for them, because the evidence is there. The Justice Committee’s report was strongly evidenced. Two chief coroners have supported the introduction of legal aid for this class of inquest and, if they do not know the reality of the situation, who on earth does? It is worth saying that, since the post was created, our series of chief coroners have done much to improve the consistency and standards of the coronial courts, but I regret to say that the Committee’s report found strong evidence of there still being instances of variability in the attitude of some coroners towards bereaved families and variability in those families’ ability to challenge some issues that arise. For that reason, it is important that they should have legal representation.
One can think of a case quoted to us in which a coroner had tried to close down a line of questioning that led to a successful threat of judicial review. The coroner rightly recused themselves, but if the lawyers had not been engaged in the case to begin with, that might not have happened, and there might well have been an injustice. That is why it is important to have lawyers involved in this limited number of cases. With respect, that is not likely to make the matter any more adversarial, and it may actually save time, because legal representation often cuts through things and gets to the issues more quickly than in cases where individuals are acting in person. Therefore, if the Government oppose Lords amendment 11, I am afraid that that is the one area where I will not be able to support them.
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I now turn to the amendments that the Government did not bring forward in the other place. Lords amendment 4 removed the presumption, which provided that a court would have to use the new quashing order powers if they offered adequate redress and there was no good reason not to do so. Lords amendments 1 to 3 remove prospective quashing orders from the Bill.
The courts have several duties with regards to judicial review. They have a duty to individuals who may have been adversely affected by a decision or action, a duty to Parliament to review whether a decision was taken in accordance with the process and procedures set down by the law, and a duty to respect their own limitations and not review the merit of a policy decision or artificially constrain a decision maker’s discretion. They also have wider duties to justice, fairness and the public interest. On many occasions, these duties align and the best outcome for a case is clear, but on other occasions these duties can conflict with the result that the nuance of the circumstances can be lost in the bluntness of the remedy.
The new powers brought forward in this Bill, as introduced, would allow the courts to respond flexibly. As such, I was disappointed that the other place voted, albeit narrowly, to remove the power for quashing orders to be made with limited or no retrospective effect, and I do not need to speak hypothetically. In Canada, another common law country, prospective remedies have been used for some decades to good effect. They have been used, for example, to help vulnerable people maintain important workplace protections that would have ceased to exist had a quashing order applied retrospectively.
Turning to the presumption, I can be brief. The Government do not accept the argument that the presumption fetters discretion or is in some way dangerous. Its purpose is to precipitate the rapid accumulation of jurisprudence on the use of these new powers. In furthering that purpose, however, we have heard persuasive arguments that it is in fact unnecessary. I am reassured, particularly by the learned former members of the judiciary who contributed to the debates in the other place, that judges will use these powers and consider their use regularly without the need for the presumption. Consistency and predictability for their use are further fostered by the list of factors in clause 1(8). I can therefore confirm that the Government will not be bringing back the presumption.
Lords amendment 5 replaced the ouster clause used to remove so-called Cart judicial reviews with a measure that would only prevent such challenges reaching the Court of Appeal, preserving the route of challenge from the upper tribunal to the High Court. I am very grateful to the other place for bringing forward this suggestion, and while I appreciate the sentiment behind such a compromise position, the Government cannot accept this as a meaningful solution to the problems we have set out. While it would tackle some of the resource question, it does nothing to reduce the burden on the High Court or upper tribunal—approximately 180 judge sitting days per year—which is where the burden mainly falls. It also does not tackle the current anomaly of a further challenge to a permission to appeal decision after that application has been rejected by both a lower and a senior court—what has come to be called in this debate, “three bites at the cherry”. The Government propose to bring back the original ouster clause, along with a technical amendment on the Northern Ireland carve-out, to ensure its terminology is consistent with other provisions.
Finally, Lords amendment 11 seeks to provide legal aid for representation for bereaved people at all inquests where public bodies—for example, the police or an NHS trust—are legally represented. While the Government are sympathetic to the intentions of those in the other place, I am afraid I do have concerns about this amendment. As drafted, this amendment would make access to legal aid in these circumstances automatic, removing the means and merits tests, and leading to significant and open-ended costs to the taxpayer. This would go against the principle of targeting legal aid at those who need it most by allowing funding for those who could comfortably afford the cost themselves.
I am very grateful to the hon. Members for Hammersmith (Andy Slaughter) and for Stockton North (Alex Cunningham) for meeting me several times to discuss this issue, including with colleagues in the other place. I have assured them that the Government are continuing to make changes to help ensure that bereaved families are truly placed at the heart of the inquest process. Aside from our recent removal of the means test for successful applications for representation through the exceptional case funding scheme, we are also proposing to remove the means test for legal help in relation to any inquests where there is a potential human rights breach or significant wider public interest as part of the means test review that is currently out for consultation. These changes will genuinely help them navigate the inquest process, where appropriate, and I urge hon. Members to await the outcome of this consultation before pursuing further legislation on this issue.
I am grateful to the Members of this House for all their scrutiny of the Bill so far, and I hope today we can accept the changes proposed by the Government on the amendment paper. Even if there remain some small disagreements between us, I am sure all hon. Members here today would like to see this Bill reach Royal Assent, particularly as it contains a number of important court recovery measures. I therefore urge hon. Members to accept the compromises the Government have made, and allow the Bill to finish its passage through both Houses as quickly as possible.
One of the ways that the Government wish to change—they say improve—judicial review is to introduce a remedy that only rights a wrong for the future, without looking to compensate the complainant or those who have come before them. This has rightly been described as having a chilling effect on meritorious applications. It was not recommended by the independent review of administrative law that was supposed to found the basis of part 1 of the Bill. It does not, as the Government somewhat disingenuously claim, add to the armoury of the administrative court; it simply seeks to restrain its powers. That fact is given away by the clunking fist of the presumption in favour of prospective orders and of suspended orders, which clause 1 also sought to introduce. In a step bordering on the disrespectful, the Minister sought to tie the hands of the court in applying its discretionary powers, so I am delighted the Government have seen the light and do not today oppose Lords amendment 4, in the name of Lord Anderson. That extracts the worst of the sting in clause 1.
Lords amendment 5, in the name of Lord Etherton, was a pragmatic attempt to make sense of the Government’s proposal to abolish Cart judicial reviews in clause 2 of the Bill. It met both the Government’s complaint that these were too profligate and the real concerns of practitioners and others that errors of law would lead to human tragedies. It would also have mitigated the concerns about unnecessary and unwelcome employment of an ouster clause. Cart judicial review, as Members here know, is engaged when the High Court reviews a decision of the upper tribunal to refuse permission to appeal a decision of the first-tier tribunal.
Clause 2 abolishes this type of judicial review altogether, yet most cases that satisfy the threshold for Cart are compelling. In many examples, as we discussed in Committee, these are asylum or human rights cases—issues of mental health, special educational needs or entitlement to basic incomes and support needs—which have serious consequences for the claimants if errors of law have been made and are sometimes matters of life and death. Lords amendment 5 narrows the ambit of Cart so that in the majority of cases there is no onward right of appeal. The only exception would be where the case raises a point of law of general public importance. In that situation, the claimant could apply to have the case considered by the Supreme Court.
The amendment represents a compromise between the Government’s desire to save the cost of Cart judicial reviews and the need to preserve an essential judicial check against serious errors of law. All that has been argued in the other place, and votes won—albeit narrowly—on amendments 1 and 5. In discussions, the Government have conceded on the presumption. We accept that that is a significant concession, and we do not intend to press any votes on the Lords amendments clauses 1 and 2 today.
Let me turn to Lords amendment 11. Eleven days ago, on 15 April, we marked the 33rd anniversary of the Hillsborough tragedy, where 97 people lost their lives at a football game. For 33 years the families of those who were lost have fought, and continue to fight, for justice. They faced cover-ups and fundamental failures of our legal system, which only prolonged their suffering. Many campaigners—prominent among them the Mayors of Greater Manchester and the Liverpool City Region, former colleagues of ours in this place—are asking for a comprehensive Hillsborough law, which we support. Lords amendment 11 addresses an important plank of the Hillsborough law, but it goes beyond that by providing equality of arms for all bereaved families at inquests and inquiries.
The amendment would require the Government to provide public funding for bereaved families where the state is represented. It is remarkable that, even with the cuts in legal aid that we have seen over the past 10 years, current rules do not provide that. This is an issue not just of access to justice, but of basic fairness. How can it be that state bodies have unlimited access to public funding for the best legal teams and experts, while families are often forced to pay large sums towards legal costs, or risk representing themselves or resorting to crowdfunding?
Five years have passed since Bishop James Jones delivered his report on the experience of the Hillsborough families. In that report, Bishop Jones made 25 recommendations, which included publicly funded legal representation for bereaved families. In May 2021, the Justice Committee recommended that for all inquests where public authorities are legally represented, non-means-tested legal aid or other public funding for legal representation should be available for people who have been bereaved. The inquiry by the all-party group on legal aid last year reached a similar view, and many voices are saying the same thing: it is time to level the playing field when state actors are represented in inquests.
The Government have acknowledged that there is more to do on this issue. They are minded to offer non-means-tested legal aid for early advice and representation where exceptional case funding is engaged. With respect, that is not enough. It would not help—to give only some examples—in the situations of families of those who suffer healthcare-related deaths in detention, self-inflicted deaths of voluntary patients in mental health settings, those under the direct care of a mental health trusts in the community, deaths in supported accommodation, or care settings where the person has been placed by a public body or local authority. It would not have helped Coco Rose Bradford, a six-year-old girl with autism who was taken to hospital in Cornwall and died unexpectedly on 31 July 2017. In January 2022, the inquest into her death concluded, finding it to be due to natural causes—something Coco’s family disputes. Coco’s mother, Rachel Bradford, told the inquest how she watched her daughter die in front of her, and how the hospital dismissed the family’s concerns, even though Coco was in glaringly obvious pain. Rachel gave evidence that Coco’s autism played a role in how she was treated by medical staff, and that the professionals wrongly viewed her as being unco-operative and non-compliant.
Members of the local community donated to contribute towards the family’s legal costs for the inquest. Coco’s mother said in a personal statement:
“Without our barrister offering to act pro bono at the inquest hearing we’re not sure what would have happened. It seems desperately unfair that we have had to crowdfund to cover our legal fees, and rely on our barrister waiving her charges, when the hospital’s legal team are paid for by our taxes.”
Cases such as those are daily injustices in our coroners courts. We can no longer ignore the voice of Bishop Jones or Rachel Bradford. I urge members of this House to retain Lords amendment 11 because it is the right thing to do. If the Bill passes without the inclusion of Lords amendment 11, we will miss another opportunity to ensure that fairness is at the heart of our legal system.
From the day this Bill was introduced, we have puzzled about why the Government were wasting time interfering with judicial processes that are designed to improve the quality of executive decisions, rather than tackling the record backlog of cases in our courts and protect the victims of crime. By supporting Lords amendment 11 the Government could make a small but significant step to improve the court system and the experience of bereaved families.
That was its view, having carefully considered the evidence, in adopting a cautious approach to such a change.
Cart was controversial at the time, and it remains controversial. Lord Carnwath, who has given evidence to the Justice Committee in the past, raised questions about the Cart appeal, with his specialist knowledge of the genesis of the upper tribunal. The general view of many is that, to quote a phrase used by Lord Hope in Committee, it was a “legal misstep”. There are, of course, a tiny number of successful cases, but those should be set against the very real burden that falls not on the Court of Appeal, where Lord Etherton— for whom I have great respect—served, but on the justice sitting in the Queen’s bench division. That is where the judicial pressure is, and we should look to remove something that many practitioners, and in private many members of the judiciary, regard as an unhelpful burden on them.
In immigration cases in particular, convention rights will be engaged, but they will have been engaged from the outset. By the time we get to the Cart appeal, they will have been argued and considered by the first-tier tribunal and by the upper tribunal which, as Lord Carnwath pointed out, was designed to be a superior court, and to have in effect the judicial weight and equivalence of the High Court. An anomaly arises from the Cart decision, and it is right and proportionate to remove it.