My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B and C. A number of changes were made to this Bill in the House of Commons. I will cover both those changes and the amendments tabled to the Bill today.
Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures.
Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate.
My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly.
We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said:
“The key question becomes the nature and effect of the legal change at issue in order to determine whether a prospective remedy is appropriate. The legitimacy of its use turns on the answer to this question.”
After considering various factors, it went on to say:
“They may include reasonable or in good faith reliance by governments … or the fairness of the limitation of the retroactivity of the remedy to the litigants.”
Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly:
“Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer.”
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I submit that we can trust our judges to follow the example of their Canadian counterparts and to use these remedies as and when they deem them to be appropriate for all parties involved, with consistent regard to interests and expectations of those who may benefit from or be disadvantaged by retrospective quashing, as set out in new subsection (8)(c) and (d), as inserted by Clause 1.
I think it also worth noting that, although separate, the removal of the presumption should reduce concern about prospective-only remedies. I remind your Lordships that the vote on this issue on Report was very narrow. I hope some of those who previously opposed giving judges this new power will now be able to remove their objection.
At this point, I should also touch on Amendment 1B by the noble Lord, Lord Marks, on the interests of other parties who may be able to claim a remedy if a retrospective instead of prospective order is used. I do not think that this amendment is necessary. New subsection (8) sets out what judges should consider when determining an appropriate remedy, and as I have set out already, that includes the interests or expectations of persons who would benefit from the quashing of the impugned act. I believe this is sufficient to include the concept that the noble Lord, Lord Marks, puts forward. The court may also set conditions on the orders it makes, which means it has the capacity to tailor the remedy further. I am also reluctant that the list of factors should direct the court in any way, which this amendment appears to do. I trust the court to decide what is appropriate in each case. Therefore, I urge the noble Lord not to press this amendment.
I turn now to the Eba case measures and to Clause 2. The judgment in the Eba case in Scotland, and the Cart case in England, made permission to appeal decisions of the Upper Tribunal subject to judicial review. The ouster clause, which will prevent this type of review in future, save for jurisdictional or procedural errors, is returned to the Bill in amendments made by the other place. This removes the alternative approach your Lordships adopted, originally proposed by the noble and learned Lord, Lord Etherton, which would have allowed judicial review of this sort to continue but made that judgment final. This effectively moved the bar one stage higher in the court system than the Government’s original proposal. I recognise that it was a thoughtful and considered attempt by the noble and learned Lord to find a middle ground. It is legitimate to argue that the bar should be set higher. As the Government set out, this is a question of where to draw the line, and there is no absolute, correct answer.
We will all, I think, agree with the principle that there has to be finality to judicial processes to ensure that the court system can serve individuals efficiently and effectively. We believe that the scrutiny offered by appeal to the First-tier Tribunal, and then the Upper Tribunal, is sufficient—a proposition which is made out by the very low success rate of Cart or Eba judicial reviews. The Government are firmly of the view that our original proposal was the correct approach and that, unlike with the presumption, we must insist on this matter.
I know that a number of noble Lords, in particular Lord Marks, have expressed more general concern about the Government using an ouster clause to give effect to their policy on Cart and Eba and that it has been suggested as a template for future potential ouster clauses. To be clear on to this, we describe this clause as a template because it is clear about Parliament’s intent, targeted at a specific and clearly identified policy mischief—in this case invoking the supervisory jurisdiction of the High Court over a refusal of permission to appeal from the First-tier Tribunal to the Upper Tribunal, itself a judicial body—and has appropriate protections in the form of the natural justice exemption. In these ways, it seeks to learn the lessons of previous failed attempts at ouster clauses that were too broad, too vague and did not offer adequate protections. Overall, I believe that removing the presumption strikes a balance on the judicial review measures. It is sensitive to the aims of the Government but also accommodates the concerns expressed in your Lordships’ House.
Noble Lords will have also seen that the other place disagreed with the amendment of the noble Baroness, Lady Chapman, on legal aid for coroners’ inquests. Although the other place formally disagreed with this amendment because it engaged financial privilege, I assure noble Lords that the Government considered it carefully and did not disagree with it on a technicality. I know that your Lordships have debated that amendment twice already, so I do not intend to go into it in great detail. However, the Government have always believed that families should be at the heart of the inquest process and that there should be a fair funding system to support them. During the debates on the Bill and elsewhere, the Government have listened to the arguments
made about the nature of inquests where public bodies are represented. I also note the argument that, while the inquest process is inquisitorial, the reality for many bereaved families is that it can feel adversarial where a public body is represented and a bereaved family is not.
The Government continue to ensure that inquests put bereaved families at the centre of the process. Our legal aid means test review is currently out for consultation and proposes to make access to legal help for bereaved families at inquests non-means tested, which follows our change in January to make access to legal representation at inquests through the exceptional case funding scheme non-means tested. However, I have heard the arguments that the Government’s recent reforms to exceptional case funding do not go far enough. The means test review invites views on our proposals to remove the means test for legal help at inquests where the case relates to a potential breach of ECHR obligations or significant wider public interest. If anyone, whether a charity such as Inquest or a bereaved person, does not think that these proposals go far enough, they can of course respond to the consultation to that effect, proposing alternative solutions. The Government will consider all responses to the consultation and respond in the usual way. On that basis, therefore, I do not believe that Amendment 11B, tabled by the noble Lord, Lord Ponsonby, which calls for a further review of legal aid for inquests, is necessary.
More widely, the Government are committed to supporting bereaved families going through the inquest process. Of course, how bereaved families are supported in the wake of a major disaster and proposals for an independent public advocate have been an important part of this debate. That will require further detailed work to ensure that any new functions such as those proposed are in the wider public interest; that they properly meet a need that inquests and inquiries do not; and that they do not adversely cut across established structures and processes. The Government will consider this further as part of our work to respond to Bishop James Jones’s review of the experience of the Hillsborough families. I beg to move.
Motion A1 (as an amendment to Motion A)