As the Criminal Justice and Courts Bill has its Second Reading in the House of Commons today (Monday 24 February), Angela Patrick, Director of Human Rights at JUSTICE considers the Government’s proposals for the future of judicial review.
For law students who slept their way through their first latin 101 lessons in ‘ultra vires’, public law and judicial review may have seemed very detached from the realities of everyday life; less relevant to the man on the Clapham Omnibus than the rigours of a good criminal defence or protection from eviction offered by landlord and tenant law.
The Lord Chancellor may be hoping that the public and Parliamentarians are similarly unfocused.
In an early sales pitch for a package of Government reforms to judicial review he told the Daily Mail that judicial review was both a source of pointless delay and yet a dangerous tool of “left-leaning” campaigners.
Judicial review is an important tool. In one of its most famous outings, Mrs Coughlan, a severely disabled woman, challenged her local NHS Trust’s decision to stop funding her treatment in residential care with the result that she would be transferred to a local authority care home. Without judicial review, Mrs Coughlan would have been moved from the place she called home, without question. In another well-known case, a pair of severely disabled sisters asked the administrative court to quash local lifting policies for healthcare workers which had left them confined to bed or wheelchair. More recently, 17 year olds have won the right to be accompanied in police interviews and Mr Catt has forced the police to remove his protest history from their files. When the Lord Chancellor considers that “some of these measures may not be popular with those who benefit from the status quo” does he have these claimants in mind?
Just as judicial review is properly available to companies challenging poor procurement decisions by central Government, so also it should be available to disabled people challenging local housing allocations which leave them unable to live with their families or community groups challenging library closures.
The Minister’s politicisation of public law has been deconstructed by many during the consultation process. Many high-profile judicial reviews – think HS2, Richard III, pro-life challenges to policies of the Department of Health and Countryside Alliance litigation – involve claims which necessarily consider political issues but claimants’ views are not necessarily limited to one side of the political spectrum or another.
MPs will first consider the Government’s case for change today, during the Second Reading of the Criminal Justice and Courts Bill. It must be open to Parliament to consider whether judicial review is working. However, Government proposals for change must be subject to close scrutiny. Government Departments are one of the most likely targets for review. Improving the efficacy and efficiency of judicial review is important. Unfortunately, the cumulative effect of the reforms proposed by the Government appear designed not to improve the work of the administrative court, but to limit its ability to hear cases at all, either by deterring individual litigants or restricting the power of the court to control its own processes in the public interest.
What’s in the Bill?
Some early commentary suggested that – listening to judges – the Government had made major concessions, and the Bill should cause little concern. Unfortunately, while the Government has abandoned its proposal to change the rules on standing to restrict access to judicial review, the impact of the remaining reforms may have a similar effect in practice. Claimants will be allowed to play but the gates to the pitch will be barred and the playing surface uneven.
- “No difference” Clause 50 of the Bill would require that any court or the Upper Tribunal refuse a judicial review claim if it “appears to the court highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. Clause 50(2) requires any “no difference” submission to be considered at permission stage.
Judges already have the discretion to refuse a remedy at any time in a judicial review claim if it is inevitable that there would be no difference to the decision being considered. The Government would lower the threshold and force judges to consider this issue at the outset of any claim. This change may, at best, create further delay, duplication and cost, as permission stage becomes a mini-trial of the substantive issues in a case. At worst, it could significantly change the supervisory function of our judges on judicial review applications, with associated constitutional implications. It is difficult to see how a judge can determine how “highly likely” a decision maker would have been to act differently had he complied with the law, without stepping into the shoes of that official.
These proposals illustrate a significant lack of understanding about the purpose of administrative law and the function of judicial review. The Government references cases “brought solely on the grounds of procedural defects” and “technically successful”. Judicial Review is a supervisory remedy. One of its core purposes is to ensure that administrative decision makers act within the bounds of the law, including by following fair processes which follow the principles of natural justice. This change would send the message to authorities that acting within the bounds of the law is unimportant, provided that they might have come to the same conclusion if they had.
- Costs and the public interest: The Bill proposes to codify the procedure for the making of Protective Costs Orders – or Costs Capping Orders (Clause 54). These orders are made at the discretion of the court to allow public interest litigation to proceed in cases where claimants would otherwise be unable to litigate. Orders act principally to limit the costs liability of claimants, to ensure individuals can afford and predict the cost of litigation. The decision to retain PCO is important. It is also welcome that the framework tests for PCO in the public interest broadly reflect existing case law. However, two aspects of the proposals are a cause for significant concern. First, the Bill would rule out any PCO before permission is granted. This would leave would-be claimants at risk of significant pre-permission costs and could defeat the original purpose of the PCO scheme. For many, this risk will be enough to deter proceedings. Since PCO are only available in cases where there is a public interest in the case being heard, the implications of that decision will have a wider public impact.
Secondly, the Bill would give the Lord Chancellor the power to amend the criteria for the award of PCO and their terms by secondary legislation. This would empower Government to change the definition of public interest – or the usefulness of PCO – subject to little Parliamentary oversight.
- Confess all? Claimants will be under a new duty to provide information – at the point of application – on their financial resources.
While it may appear reasonable for the court to pursue all avenues for the enforcement of costs orders legitimately made against unsuccessful applicants, the requirement for would-be applicants to provide any significant information about their financial information at the outset of a claim is new. In the context of this package of reforms, there is a possibility that these measures will – by design or coincidence – deter the use of judicial review.
Little information has been given by Government about how this information will be stored, processed or otherwise disseminated by the Court. It would seem inappropriate in many cases to distribute this information to the parties in a case, particularly where the information is personal or may relate to commercial sensitivies. If the information is to be gathered solely for the purposes of aiding costs recovery, Ministers should be asked to explain why this information should be provided at the point of application rather than during the enforcement process after it is determined that an individual party is liable for costs. In this regard, we note that there is a considerable body of existing law which governs the ability of the court to pursue costs from “unseen” funders and backers of litigation (See for example, Hamilton v Al Fayed (No 2)  QB 1175).
We are concerned that measures designed to improve recovery of costs should not ultimately be used to limit access to judicial review only to those with substantial independent means by deterring others from pursuing litigation even where their claims are strong. By proposing to limit the ability to access PCOs and by limiting access to legal aid, it is likely that individuals and groups without significant funds will explore other avenues of support for litigation. If the mechanism for the handling of information in connection with the recovery of costs is unclear, or the means by which the court might pursue an individual are uncertain, these avenues are likely to be similarly constrained (for example, if a charity obtains a grant from a third party organisation for the purposes of pursuing litigation capped at £5,000, will the court be capable of enforcing a costs order against the donor for any sum over that amount?). These are questions which have not yet been explored and which should be better defined before Parliament approves the changes proposed in Clauses 51-52.
- Interveners: Clause 53 of the Bill makes provision for attributing costs to third party interveners. Clause 53(2) places current practice – whereby any third party must meet its own costs – on a statutory footing. Clause 53(4), provides that on any application to the High Court or Court of Appeal by either of the original parties to the dispute, the court must order an intervener to pay any costs incurred by those parties arising ‘as a result’ of the intervention. The Government argues that any party which “chooses” to intervene in a case should share a “proportionate” share of the financial risk associated with the case.
JUSTICE is statistically one of the most frequent interveners before the Supreme Court. Our work could be affected by this decision and we do support the status quo. Like many other charities and organisations who work in the public interest, the introduction of a mandatory costs liability in any case will be a significant risk for our Board to consider in determining our future strategy or our work in an individual case.
We consider that these proposals should not proceed on a misunderstanding about the role and function of a public interest intervener, in particular:
- The Court as gate-keeper: While parties may choose to pursue an intervention, the scope and character of any intervention is ultimately at the discretion of the Court hearing the relevant claim. As we explain in To Assist the Court, an intervener will show that they bring value to a case not likely to be met by the parties and their contribution will assist the court in its consideration of the case. Thus, in the strictest sense, in every case, an intervener is invited by the Court to play a role which is defined ultimately by its discretion.
It is already well within the scope of the courts’ existing powers to order costs to be paid by interveners. The Government intends costs to be divided proportionately to the assumption of financial interest in the case. Yet, interveners generally have no direct interest in the claim. In any case, an intervener can neither win nor lose. They are contributing the cost of their own involvement to assist the court to reach a conclusion in the case, which is objectively improved by a consideration of the law which goes beyond the dispute between the parties.
- The public interest: It is extremely unusual – but not unknown – for third parties to be granted permission to intervene (rather than be joined) to represent their own personal interests. The long term benefit of interveners willing to put objectively sourced information and argument before our judges to help ensure that the development of precedent is informed by the wider public interest outside the immediate demands of a case has not been addressed by the Government. Although these benefits may be difficult to quantify in monetary terms, the support of the senior judiciary for reasonable third party interventions is clear. As Baroness Hale recently pointed out:
Once a matter is in court, the more important the subject, the more difficult the issues, the more help we need to try and get the right answer. […]
But from our – or at least my – point of view, provided they stick to the rules, interventions are enormously helpful. They come in many shapes and sizes. The most frequent are NGOs such as Liberty and Justice, whose commitment is usually to a principle rather than a person. They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.
However, the cornerstone of the Government’s reforms is not in the Bill, but will be in parallel regulations. Legal aid will only be available in cases where permission is granted. The consultation process highlighted the risks in this approach; for example, the senior judiciary warn against the “chilling effect” on litigation. No work done on any proceedings where permission is refused may be recovered. An ex gratia scheme for discretionary payment from the Legal Aid Agency will only be available in cases where a case settles between issue and a permission hearing and gives little comfort to public law practitioners. The Government argues that the purpose of these reforms is to deter the bringing of weak or “unmeritorious” claims. Shifting the burden of risk in these circumstances misunderstands the nature of judicial review. Claims are forward looking and evolve as they progress. It can be difficult for advisers to take a definitive view on prospects of success which may be significantly affected by concessions made by respondent authorities or during disclosure. The business risk associated with the bringing of judicial review on legal aid at risk is likely to significantly reduce the availability of advice and representation for those without means in practice.
Exceptional funding provisions in the Legal Aid Sentencing and Punishment of Offenders Act 2012 – carved out to provide for funding in cases required by the ECHR and EU law – will not realistically provide a substitute (with only around 30 cases attracting funding in its first year of operation). The application process alone – with applicants required to complete a lengthy form and conduct a merits assessment of their case – renders this route infeasible for most.
In light of the limited funding protected by LASPO – including for judicial review – MPs and Peers may wish to ask why this significant change is being made by secondary legislation and not considered during the passage of this Bill.
Judicial review and associated administrative law provide an essential opportunity for people who are aggrieved by poor public decision-making to take their challenge to an independent and impartial tribunal. In a country with no written constitution to control the relationship between the citizen and the State, this function takes on a particular constitutional significance.
Today’s Second Reading debate was swiftly arranged, allowing little time for consideration. It will follow a week’s recess for MPs, usually spent working in the constituency. Members may want to consider their aggrieved constituents – and their own “Mrs Coughlans”.
Without access to judicial review, their only alternative route to a remedy might start in their constituency office.
JUSTICE’s full briefing on the Bill is available here.
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