You cannot be serious! Peers call ‘out’ on Government’s judicial review reforms – Angela Patrick

1 July 2014 by Guest Contributor

Last night saw the House of Lords’ first reaction to the Government’s proposed changes to judicial review as the Criminal Justice and Courts Bill had its second reading.   Already dissected at some length in this blog, the proposals have been roundly criticised by both the senior judiciary and the Joint Committee on Human Rights.   Consultations responses, including from JUSTICE, expressed concern that the measures appear, by design or coincidence, to undermine the rule of law, inhibit transparency and shield the Government from judicial scrutiny. Two key concerns arise from the Government proposals: restricting access for individuals without substantial means and limiting the courts’ discretion to do justice in the public interest. Yesterday’s debate was robust and eloquent, with former Law Lords joined by bishops and backbenchers alike to condemn the new measures.  

Metaphors were rife. Descriptions of the Government’s proposals ranged from Lord Woolf’s invocation of the image of Governmental wolves among some unlikely judicial sheep, to the titular and topical tennis imagery used with devastating effect by Lord Brown of Eaton –under-Heywood:

“More and more areas of our lives are controlled by public authorities. At the same time we have become understandably, I suggest, less trusting and certainly less deferential towards those with authority over us. I sometimes wonder whether it did not all start with John McEnroe’s outraged questioning of line calls at Wimbledon way back in the 1970s. However, we should consider how in the long run his behaviour has contributed to the hugely improved policing of those lines that is in operation today…By the same token, the use of judicial review has to my mind undoubtedly raised the standards of public decision-making in recent years.” (Col 1591)

Lord Pannick went on to criticise the Minister’s misrepresentation of judicial review as a relatively recent legal upstart, only taking root in the mid-70s:

“[T]he Minister suggested that judicial review began in the 1970s. That uses as much poetic license as Philip Larkin’s suggestion…that, “Sexual intercourse began. In nineteen sixty-three… Between the end of the ‘Chatterley’ ban. And the Beatles’ first LP” (Col 1551)

He went on to express regret that the current Government’s approach to this debate had seen a significant shift over his time in practice (since the 80s):

“[D]uring that time, each and every Government have shown signs, perhaps understandably, of being irritated from time to time by the power of the judiciary to identify and remedy lawful conduct. When they calmed down, however, Ministers recognised the value of what is central to the rule of law. They also had in mind a more pragmatic consideration – that they would not be in power indefinitely and they would wish their successors to be subject to the same proper constraints of the rule of law.” (Col 1565)

The importance of judicial review and the weakness of the Government’s case for change was stressed by many. Baroness Campbell of Surbiton – a long standing disability campaigner and former Equality and Human Rights Commissioner, highlighted that this debate was important to us all, not just the lawyers:

“Judicial review and access to justice have never been more important, particularly for people with disabilities…Disabled people have far more contact with public agencies, whose decisions may have a devastating impact on how we live. It is not surprising therefore, that the means of ensuring that those decisions are taken lawfully, fairly and as Parliament intended is so highly prized.” (Col 1557)

Another non-lawyer, the Bishop of Oxford added, citing his own authorities:

“Judicial review, is a vital element in our system of democracy and in ensuring that elected authorities act in accordance with the law. The executive power at every level must be subject to the law. In the pages of scripture, in Deuteronomy, the King of Israel is told that he must not consider himself better than his fellow Israelites or turn from the law to the right or to the left. The same applies to all public authorities at all times.” (Col 1556)

The weakness of the Government’s case – initially based on expanding judicial review figures – was probed by Peers across the house.

The political nature of the challenge was highlighted by Lord Pannick, who recalled the Lord Chancellor’s case that judicial review was being high-jacked as a “campaigning tool” for “left-leaning” organisations: “I am aware of no evidence whatever to support his basis for legislating, and, more importantly, nor is the judiciary who hear these cases five days a week.” (Col 1565). He praised the sense of humour of the Minister, Lord Faulks, who opened the debate, in recognition of the need to avoid legislating by reference to newspaper headlines.

Lord Woolf expressed his own eloquent regret about the Lord Chancellor’s involvement in the Bill’s promotion:

“[A] long time ago, [when] I had to travel on judicial business, it was suggested by the then Lord Chancellor’s Department that I should travel under a nom de plume for safety. It was suggested that Mr Sheep would be an appropriate name. I am afraid that I have reluctantly come to the conclusion that, as regards the rule of law, the Lord Chancellor, Mr Grayling, is showing signs of becoming a wolf, so far as clothing is concerned , rather than a Lord Chancellor. The judiciary, I fear, may be the sheep….I believe that he is sincere in his many protestations that he is seeking to fulfil his oath and his special statutory responsibilities, but he has to be judged by his actions…” (Col 1602)

This echoes the earlier concern of the Joint Committee on Human Rights (summarised earlier in this Blog, here), that the Lord Chancellor’s energetic pursuit of these reforms had highlighted the danger of combining the role of Secretary of State and Lord Chancellor for the rule of law.

Each of the four proposals on judicial review in Part 4 of the Bill were subject to deep criticism:

• Highly likely (Clause 64): The Bill would replace the existing “inevitability” test on materiality with one where the courts must refuse any claim where it would be “highly likely” not to have made a substantial difference to a claim.

Lord Pannick stressed this is “objectionable on constitutional grounds”. Explaining, “[t]he clause instructs judges to ignore unlawful conduct and to do so in a context where the Government themselves are the main defendant…[I]t fails to understand that judicial review is concerned not just with the narrow interests of the individual claimant had the results been different”. (Col 1565).

In another context, Baroness Campbell mentioned the importance of the recent Tracey decision in the Court of Appeal (dissected in this Blog, here). This involved a failure to consult patients or their families in making DNR (Do Not Resuscitate) Orders. The decision has been heralded as an exceptional decision for the dignity of patients. Yet, it took years to achieve. If Clause 64 were to take effect, we could, quite realistically, see lengthy argument at the outset – before permission is even granted – on whether consultation would have been ‘highly likely’ to change the Trust’s decision. The case might never have got off the ground:

• Financial disclosure and costs risks (Clauses 65-66): The Bill would require all judicial review claimants to make new disclosures about their financial circumstances and the likelihood that any third party may be able to fund the litigation. This information must be considered by the courts in assessing costs. Little information is given on how the information will be stored or processed. Lord Paddick interjected – as a previous claimant in a phone-hacking related judicial review – to stress that he and many others could not have taken the costs risk associated with litigation without the support of a benefactor. Though pure of motive, that person wanted to be anonymous. His litigation would be barred under the new rules. Baroness Cambpell added that these measures could inhibit people without means and no access to legal aid, exploring alternative means to secure a challenge. She asked “If my cousin gives me £5,000 to help me challenge a decision about my support, will that open up the spectre of court costs, putting her home at risk? What about lawyers volunteering their services probono? Would their gifts in kind put them at similar risk? If not where is the reassurance in this Bill?” (Col 1558)

• Interveners and the public interest (Clause 67): One of the most controversial proposals in this part of the Bill would see the costs rules on intervention reversed, to create a presumption that an intervener granted permission by the court would generally be liable for all parties costs associated with the intervention, bar in exceptional circumstances. Many Lords stressed the importance of interventions for the public interest, and the lack of any evidence that the courts had insufficient powers to control bad behaviour. Lord Carlile, for example said:

“The inevitable consequence of this is that charitable and not-for-profit organisations will no longer be prepared to provide their expertise to assist the court in cases of wide public importance. How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?” (Col 1607)

It is welcome, but perhaps unsurprising that the Minister accepted that the Government may be willing to look at these measures again, even before the debate began in earnest (Col 1542).

• Protective costs-orders (Clauses 68 – 69): The Bill would place the procedure for PCOs on a statutory footing. Unfortunately, the Government purports to restrict any PCOs to applicants (not interveners or other parties) and only after permission (neglecting that pre-permission costs may be a substantial deterrent). In addition, the Minister will retain the power to amend the definition of “public interest” and the arrangements on which a PCO are made, through secondary legislation. Lord Woolf stressed that these measures could significantly undermine the ability of the judiciary to do justice in the public interest. 

“Again, it is an effort by the judges to obtain a level playing field. It is known that applications for judicial review that should be heard in the public interest will simply not be heard and will not come before the courts, to the disadvantage of the public, if litigants have to pay costs they cannot afford. The courts look into the matter and put a restriction on the level of costs …so that they have the confidence to move forward. However, to do that after permission stage is pointless because it will never get to that stage. I am at a loss to understand how that could have been suggested.” (Col 1603-04)

The Minister attempted to close with his own metaphor, comparing judicial review to a precious vase that shouldn’t be left to gather dust on a high shelf lest it be “caused to crack by simply touching it” (See Col 1630). This is a metaphor much loved by the Ministry of Justice – it was used with aplomb by his predecessor, Lord McNally at a JUSTICE event at last summer’s Liberal Democrat conference, for example. However, it is somewhat undermined by the contributions of the Peers themselves.   Many – including Lords Pannick, Brown and Woolf – cited the recognition of many respondents to the Bill including JUSTICE and the Bingham Centre for the Rule of Law, that judicial review procedure can be improved. The Fordham Review on Streamlining Judicial Review in a manner consistent with the rule of law clearly recognises the potential for making the process more effective and fairer for claimants and respondents alike. The 2009 Jackson Review expressly called for change – but to make the costs risk for claimants less, not more, burdensome.

The problem is that these reforms do not appear to seek to preserve the fairness and effectiveness of the process. Instead, they target claimants and judicial discretion alone, with the cumulative effect (taken together with the recent changes to legal aid and fees) that the remedy will become inaccessible for all but those with deep pockets. To take the Government imagery further, the Peers would be happy polishing the Minister’s fictional vase and passing it around. The Government would like to see it preserved in an expensive, pay-per-view museum, accessible only to the few.

Angela Patrick is Director of Human Rights Policy at JUSTICE. JUSTICE’s full briefing on the Criminal Justice and Courts Bill is available here.

For further information on the work of JUSTICE see www.justice.org.uk or @JUSTICEhq.

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