This amendment is supported by the Law Society, the Bingham Centre for the Rule of Law and the Public Law Project.
Amendment 5 is intended to strike a middle course between, on the one hand, the abolition of the Cart supervisory jurisdiction of the High Court in England and Wales, and the Court of Session in Scotland, subject only to the three exceptions specified in proposed Section 11A(4) of the 2011 Act, and, on the other hand, the full retention of the existing Cart supervisory jurisdiction. My amendment would maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from a refusal of permission to appeal or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court, such as interim relief. The one exception is that following a debate in Committee, and at the suggestion of the noble Lord, Lord Pannick, the amendment now provides for an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal. My amendment provides for a very short timetable of seven days for an application for leave to appeal.
My amendment would curtail the amount of judicial time currently spent on hopeless Cart cases. In one important respect, it would impose a more restrictive regime than that in Clause 2, as it does not make any exceptions as are to be found in subsection (4). Those exceptions give rise to concern, as it can be predicted, particularly in immigration and asylum claims where the objective is often to string out matters for as long as possible, that many applicants will claim to fall within one or more of the three exceptions, even if hopeless, and the High Court would have to adjudicate such claims, and with a right to apply to the Court of Appeal for permission to appeal.
Critically, retaining the restricted supervisory jurisdiction, as proposed in Amendment 5, would help to avoid injustice. The Ministry of Justice’s best estimate,
based on the nine years from 2012 to 2020, is that the Cart jurisdiction has been successfully invoked in between 40 to 50 cases on average each year, and on being remitted to the Upper Tribunal for reconsideration of permission to appeal, the overwhelming majority are then given permission to appeal.
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You will not find any of the underlying analysis of that statistical framework in either the IRAL report or the impact assessment for the Bill. It is the combined result of a letter to me from the Minister of 18 February 2022 and a recent, helpful Teams meeting between myself and two members of the Bill team. I am extremely grateful to the Minister and the Bill team for engaging with me in trying to understand what the figures were. As far as I am aware, the only publicly stated basis for the Minister’s rejection of my proposed middle course is his assertion at Second Reading that abolition of Cart jurisdiction would save 180 days of judicial time. I am afraid that although the Minister has cited that figure in good faith, it is likely to mislead in the context of the current debate. I am not going to go into the underlying analysis of the figures, but I will simply cite those agreed by me and the relevant persons in the Bill team regarding the time taken up by Cart cases. It is clear from both the Minister’s letter of 18 February and the Teams meeting that I mentioned that between 140 and 150 judicial days each year, not 180, are spent on Cart cases in the High Court. Moreover, even the figure of 140 to 150 days includes 40 to 50 Cart applications which are successful, as well as cases that would fall within the three categories of excluded cases in Clause 2.
An alternative way in which this has been put to me by the Ministry of Justice is that if the Cart jurisdiction was abolished there would be a saving at the High Court level of some 750 Cart cases. Again, this may be, completely unintentionally, misleading in the context of the current debate because, on average, 99% of Cart cases over the nine-year period I mentioned were dealt with on the papers, and the Ministry of Justice has estimated that it would take less than one and quarter hours to dispose of each of those applications. It should be remembered that the figure of 750 includes successful Cart applications and those within the three categories that would continue to operate under Clause 2.
Of critical importance in the present debate is that it is agreed that 40 to 50 cases, which provided the balance of the 180 days originally relied upon by the Minister, are successful Cart applications which are then remitted to the Upper Tribunal for reconsideration of permission to appeal. Where there is established case law against the claimant at the level of the Court of Appeal, inevitably leading to a refusal of permission to appeal by the Upper Tribunal, the inability to take a case to the Supreme Court could be very damaging to the development of the law.
I give one graphic example: a case in 2010 in the Supreme Court, HJ (Iran). What was under consideration was the test under the 1951 refugee convention for gay asylum seekers. The long-established law at the level of the Court of Appeal was that an asylum claim by a gay man could not succeed if he could reasonably be expected to be discreet as to his gay activity, and
discreet behaviour would not result in any action by the state authorities. The claim in that case inevitably failed before the Asylum and Immigration Tribunal and the Court of Appeal, but in the Supreme Court a fundamentally new approach was laid down: that where a claimant does not wish to modify his behaviour if returned to his home country, he has a well-founded fear of persecution within the 1951 convention, as a member of a particular social group based on sexual orientation.
Standing back from the detail and ignoring a substantial number of deputy High Court judges, the truth of the matter is that 140 to 150 days on Cart cases or, putting it a different way, 750 Cart cases, 99% of which are dealt with on the papers, represents a small proportion of judicial time on average per year for the full cohort of Queen’s Bench Division High Court judges. The middle course I propose is therefore just and proportionate. I beg to move.