My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.
The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.
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Lord Justice Laws took a different view but made the point that it would be only in rare and exceptional circumstances that such a challenge would happen. He described
“the grossly improbable event that”
the Upper Tribunal
“were to embark upon a case that was frankly beyond the four corners of its statutory remit … a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of”
the court. Therefore, he was envisaging it as extremely unusual for such a challenge to take place, having regard to the fact that all the arguments would already have been rejected on two occasions, including the sorts of arguments that feature in the amendments; that is, the risk to an individual seeking asylum, that when he or she went home they might receive gross treatment under Article 3, a breach of Article 8, or whatever.
The problem was that Lord Justice Laws was wrong in terms of predicting how frequent such a challenge should be. We produced evidence, which has not in any way been challenged, and there were 779 applications of these gross errors per year—the highest number of challenges of any challenge by way of judicial review. This hardly fits the sort of description that Lord Justice Laws had in mind. When the noble and learned Lord, Lord Brown, was dealing with the matter in the Supreme Court, his speech did not evince much enthusiasm for keeping these challenges. He was a little concerned that there might be endless challenges which did not have merit:
“The rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”—
a vivid metaphor.
Of course, every case is important to the individual, and one does not want to deny proper remedies. But sometimes there has to be an end to litigation, and one
has to take into account the administration of justice and the many hours that judges spend conscientiously looking through a very substantial number of documents to find that there is essentially no limit to the challenge. Of course, if there is the possibility of a challenge of the sort that a judicial review might involve, people will take advantage of it—one can hardly blame them. However, we respectfully submit that to say that this particular provision should not be part of the Bill, which is the Labour Party position, is not reasonable.
Incidentally, the noble Lord may know that the shadow Foreign Secretary, the former shadow Secretary of State for Justice, when he was a Minister, wanted to get rid of these sorts of challenges altogether—I think the noble Lord knows that that was the case—whereas, in this provision, there is in fact a qualified clause, making it far less rigorous than was proposed by Mr Lammy on that occasion.
I echo what I said on previous occasions. These are modest suggestions and the Labour Party should not take the view that any change to judicial review is per se bad. It is a change that is welcomed by the judges as a whole—of course, I cannot speak for all of them—and to say simply that this whole section of the Bill should go is not a responsible act of opposition.