Risk to Judicial Review
Legal experts campaign to stop government dodging legal challenges
20 October 2014
The Bar Council, the Law Society and the Chartered Institute of Legal Executives (CILEx) have today called for Peers to urgently amend Part 4 of the Criminal Justice and Courts Bill in the House of Lords this week, claiming it is an attack on judicial review, the legal process used to hold government to account for acting unlawfully.
They say the Bill will have a chilling effect on individuals and organisations seeking justice.
Chairman of the Bar Council, Nicholas Lavender QC said: “If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother’s care home or relocate your child’s school, what would you do? Judicial review is an important tool to stop dodgy decision-making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power.”
Part 4 of the Criminal Justice and Courts Bill would:
· Restrict the use of protective costs orders limiting judicial review to the wealthy
· Expose people not party to judicial review, including friends, relatives and associates of claimants, to the financial risk of paying costs
· Discourage helpful contributions made by charities, NGOs and others (known as ‘interveners’) by making them liable for costs, even when they make positive contributions to our courts’ consideration of difficult legal problems, and
· Shield public bodies from proper scrutiny when they act unlawfully.
This would restrict access to judicial review for some of the weakest and most vulnerable in society and would make it easier for public bodies to act without regard for the law in some of the most sensitive areas of our lives.
At present, protective costs orders (PCOs) can be used to limit how much of the other side’s legal costs a claimant must pay. The costs risk associated with litigation can be a significant deterrent. The Bill would stop judges from granting PCOs until permission is granted, a stage which in itself requires intensive up-front work by lawyers which incurs costs. Only a handful of PCOs are granted by judges each year as things stand, and only if the case is in the public interest. Yet, the Government has implied this gives claimants a free ride, which is an unfair and inaccurate description.
President of CILEx, Frances Edwards said: “This means judicial review will only be available to risk takers with deep pockets. Access to justice should be about the merits of your case, not the size of your wallet.
“The Bill would also allow a Government Minister to decide what matters are in the ‘public interest’, rather than independent judges. This would enable future governments to keep certain challengers at arm’s length. That is like letting the title holder choose their challenger.”
The Bill will also force judges to consider making cost orders against anyone who might be able to help the claimant financially, including friends, family and community members.
Chairman of the Bar Council, Nicholas Lavender QC said: “Encouraging judges to force your friends and family to fork out when you challenge a public authority will be a massive disincentive to those seeking redress from government wrong-doing.”
Charities, NGOs and even government departments, always with the permission of the court, contribute expert advice and guidance in cases, which is essential to the law-making process. However, the Bill will force judges to make these interveners pay costs which would undoubtedly deter experts from providing the kind of assistance that courts find valuable.
Expert organisations, including charities and NGOs do not wade in to judicial reviews for fun. The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions. Making interveners liable will have a chilling effect on organisations who do this important work at their own expense.
Judicial review is also used to clarify important points of law, including in cases where the challenge is rejected because in that specific instance the outcome would ‘inevitably’ be no different had the authority correctly followed the rules, but where nevertheless clarification of the law is in the public interest. The Bill would force judges to reject challenges even in cases where it is “highly likely” there would be no difference.
President of CILEx, Frances Edwards said: “Raising the no-difference threshold means an authority could escape legal challenge even when they’ve obviously behaved improperly. It will mean a judge second guessing the likelihood of a different outcome before hearing the issues in the case. That would increase the volume of evidence at the permission stage, adding to costs and delay.”
Part 4 of the Bill is expected to reach Lords’ report stage on 22 and 27 October.
Chairman of the Bar Council Nicholas Lavender QC said: “We call on all Peers to support the amendments to Part 4 of the Criminal Justice and Courts Bill tabled by Lord Pannick, Lord Woolf, Lord Carlile, and Lord Beecham. These amendments will make sure that the legality of Government decisions can be challenged by anyone with a legitimate case, that the fight will be fairly fought, and that it will be refereed by judges, not Government Ministers.”
The leaders of the three professions wrote to the Sunday Times. Their letter is below:
A key principle of the Rule of Law is that nobody is beyond legal reproach, including the Government, yet Part 4 of the Criminal Justice and Courts Bill, reaching report stage in the Lords this week, will allow the Government to put itself, if not above the law, a little further from its grasp. This Bill will restrict access to judicial review to everyone, particularly the poorest and most vulnerable in society, and we ask you to amend it in response to widespread concern about its potential effects.
Judicial review is the mechanism individuals can use to
challenge government and public authorities when they make unlawful
decisions. It has been used to stop governments from imprisoning
people without charge, closing care homes and moving schools, and
granting or denying planning permission incorrectly. To anyone
bearing the brunt of an unlawful government decision,
restrictions introduced by the Bill mean justice will not be served.
The Bill will also restrict experts, including charities and
NGOs, from legitimately lending their expertise to the courts to
aid good law making, even when they have the express permission of
judges. The impact of these changes will be to immunise the
Government, and other public authorities, against effective legal
challenge. This will be hugely damaging to the rule of law in our
to the reputation of our system of justice internationally.
We urge Peers to vote in favour of amendments to Part 4 of the Bill tabled by the Lords Pannick, Woolf, Carlile and Beecham which will maintain judicial review as a legal keystone of our democracy. Next year we will be celebrating the 800 year anniversary of the sealing of the Magna Carta, a seminal point in our history that marked the establishment of the rule of law. The rule of law demands that government decision-making be subject to legal challenge. For government itself to restrict the terms of those challenges threatens the separation of powers on which our constitution is based.
Nicholas Lavender QC, Chairman, Bar Council
Andrew Caplen, President, Law Society
Frances Edwards, President, Chartered Institute of Legal Executives