In my post on the first draft of the MoJ proposals, I warned to beware of kite flyers, and said:
Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality.
Without wanting to say “I told you so” (oops), don’t be fooled by the seeming concessions. There is still a lot to be concerned about in what remains, as there was in the last round of changes – as Dr Mark Elliott points out, JR, like the NHS (and Communist Russia), now seems to be in a state of perpetual reform. I do not intend here to analyse the proposals in detail, but I will point you towards some excellent early articles.
First, Joshua Rozenberg on Guardian.co.uk, arguing that Despite the tough talk, Grayling has listened to the judges on judicial review. Rozenberg points out that some of the more controversial proposals have been binned, perhaps in response to the judiciary’s criticisms.
Dr Mark Elliott is right concerned about the remaining proposals, and particularly the new “makes no (substantial) difference” principle – see clause 50 of the new bill.
These worries are shared by barristers Ben Jaffey and Tom Hickman in their excellent UK Constitutional Law Association blog. They say:
It is clear that the concern is not to make judicial review more effective or more streamlined, but a means of making it more difficult to pursue. A more effective way of dealing with “no difference” cases is for the Government to admit any error then agree to retake the decision. Instead, the Government will be incentivised to defend such claims. Courts will become embroiled in lengthy evidential disputes about a new defence of ‘makes no difference’.
There is plenty more to be concerned about in this bill, and not just for lawyers who practise in Judicial Review (watch out for the old canard that any lawyer criticising the changes is just concerned about their bank balance – if they were that concerned about their bank balance, they would ditch public law for a pure commercial or chancery law practice).
For example, the proposal to expose “secret funders” for litigation, hidden financial disincentives (see Jaffey and Hickman, §4) and threats to interveners through the threat of substantial costs orders.
So watch out. It is now for Parliament to blunt some of the sharp edges of this bill. If it fails to do so, there will be a real threat to the rule of law and the ability of individuals to keep the executive in check. And it isn’t just lawyers who should be worried.
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- Judicial Review is not part of a vast left wing conspiracy →
- Standing and judicial review: why we all have a “direct interest” in government according to law – Dr Mark Elliott