Not in our name: Parliamentary committee rejects Government’s case for Judicial Review reform – Angela Patrick

30 April 2014 by Guest Contributor

Angela Patrick, Director of Human Rights Policy at JUSTICE, summarises the important Joint Committee on Human Rights report “The implications for access to justice of the Government’s proposals to reform judicial review”.

Proposed Government restrictions to judicial review, including new cuts to legal aid, have already been dissected in detail by this blog (see here, here and here). Controversial Government proposals to limit when legally aided claimant solicitors will be paid in judicial review claims came into force last week (Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations).  

Heralding the arrival of the changes, the Lord Chancellor again repeated his now oft-heard refrain that reform is necessary to prevent “legal aid abusers” tarnishing the justice system.  Specific restrictions were justified to limit judicial reviews “instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.

Today, the Joint Committee on Human Rights (JCHR) publishes its verdict in a lengthy and considered report on the likely impact on access to justice of the cuts and the proposed changes in Part 4 of the Criminal Justice and Courts Bill. In short, the Committee rejects the case for reform and suggests that the Government go back to the drawing board.

Through several consultations on the proposals and during the Committee’s inquiry, this has been the resounding message coming from the professions, civil society and organisations representing vulnerable groups, and the judiciary. However, the JCHR is a cross-party Committee, including members from both Governing parties and the cross benches in the House of Lords. The Report comes with cross-party support. The Report’s conclusions, summarised below, provide an important counterfoil to the political language used by the Lord Chancellor in earlier debates on reform.

The role of the Lord Chancellor  

The Committee highlights the politicised language used by the Lord Chancellor in his “energetic” pursuit of the reforms (para 21). The Report reaches a robust conclusion that the process of reform has illustrated a particular constitutional problem in the combination of the political role of the Secretary of State for Justice and the duty of the Lord Chancellor to protect the rule of law and the independence of the judiciary (para 22). (These duties have been encapsulated in statute since the merged role was created in the Constitutional Reform Act 2005 – see JUSTICE response to the Transforming Legal Aid consultation, para 11.)

The case for change

The Committee affirms the important constitutional role of judicial review: “Judicial review is one of the most important means by which the Government and other public bodies are held legally accountable for the lawfulness of their decisions and actions” (para 12).

The Report explains that while the Government is entitled to examine the effectiveness and efficacy of judicial review, its proposals for reform should be put to close scrutiny by Parliament (para 17).  Applying this test, the Committee concludes that the Government has failed to evidence any need for reform:

“The premise of the Government’s Consultation Paper is that the use of judicial review has expanded massively in recent years and it is open to abuse” (para 24)

“We note that the number of judicial reviews has remained remarkably steady when the increase in the number of immigration judicial reviews is disregarded [The Committee earlier notes that immigration judicial reviews have been removed from the High Court to the Upper Tribunal]..We therefore do not consider the Government to have demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate” (para 30).

The Government’s statistical case for change has been dissected carefully by many, including JUSTICE, the Public Law Project and the Bingham Centre for the Rule of Law. The Committee’s endorsement will come as little surprise to most. However, the Report highlights that the Committee put the Government’s case on abuse to the Head of Legal Services for Birmingham City Council (who was unable to give any examples of cases) and to the former Court of Appeal judge, Sir Stephen Sedley, who said that he had seen no form of abuse that the Administrative Court couldn’t deal with using existing powers (see paras 24 – 25).

Legal aid cuts 

Importantly, the Committee concludes that the legal aid changes – which are now in effect – have been made without sufficient opportunity for parliamentary scrutiny. The Report recommends that the Government void the Regulations and make amendments to the Criminal Justice and Courts Bill (currently awaiting Report Stage in the House of Commons) (paras 80–82).

Significantly, the Committee also confirms its view that the proposal to shift the burden of risk for pre-permission work in judicial review to solicitors is not supported by evidence (para 79):

“In our view, the reform pushes too much risk onto providers and creates too great an uncertainty about the degree of risk, causing a chilling effect on providers which will have a significant impact on justice because meritorious judicial review cases will not be brought” (para 76).

“We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view…it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it – evidence which is currently lacking” (para 79).

Listening to the senior judiciary

In considering the detailed provisions on legal aid and in the Criminal Justice and Courts Bill, the Committee makes heavy reference to the response of the senior judiciary to the Government’s consultation. In considering the proposal to require the Court to strike out claims “highly likely” to make no substantial difference to the claimant (we consider this issue, below), the Report was particularly critical:

“The Government ought not so lightly to go against the views of the senior judiciary on a matter concerning the practical impact of its proposal on court proceedings, at least without any indication as to how the concerns of the senior judiciary can be mitigated in practice” (para 48).

The important constitutional functions performed by each of the branches of the State are important and each must shape our legal processes through their work and experience.   There is nothing in this recommendation which might suggest that the Executive must be bound by the views of the judiciary. However, given the limited case for reform, that the judiciary’s concerns were not given greater credence is cause for significant concern.

Criminal Justice and Courts Bill

The Report deals with three of four substantive proposals in Part 4 of the Criminal Justice and Courts Bill. The Committee recommends that there is no evidence to support any case for change in the Bill and recommends that each of the Government’s proposals is deleted or significantly amended to reflect the status quo (paras 54-56; 79, 80 – 82; 92 – 93, 101 – 103):

• Highly likely? (Clause 50) The Committee concludes that there are principled and practical objections to the proposal to lower the threshold at which the Court must reject a case on the basis of “no-difference” from the current “inevitability” test to “highly likely”. Citing “sound constitutional principles” for the status quo, and endorsing the view expressed by the senior judiciary that the change would create “dress rehearsal” permission hearings (with associated delay and costs), the Committee recommends that these changes be deleted from the Bill or amended to reflect current practice.

• Interveners and costs (Clause 53) The Bill would reverse the current costs position, creating a presumption that interveners granted permission by the Court would generally be liable to pay the costs of all parties (win or lose) except in exceptional circumstances. The Committee’s conclusion speaks for itself:

“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of greater import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on the terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent in judicial review cases…” (para 92).

• Protective costs orders (Clauses 55-56) The Committee raises no specific objection about the codification of the rules on capping, but considers that introducing a bar on pre-permission costs capping would “undermine effective access to justice”. The Bill should be amended to preserve judges’ discretion to make orders before permission stage. Henry VIII powers which would allow the Minister to revisit the definition of public interest in delegated legislation should be removed (“such a power has serious implications for the separation of powers”) (para 103). 

What next? 

Mr Grayling – in his recent Telegraph piece, above – suggests a democratic motive in restricting legal aid for judicial review.  Yet, the JCHR is the second Parliamentary Committee to raise serious concerns about these particular proposals (the House of Lords Secondary Legislation Committee reported earlier this month).

The Government is required to respond to the Joint Committee on Human Rights within two months. Before that time expires, the Criminal Justice and Courts Bill is likely to have completed its passage through the House of Commons (it is expected to move to the House of Lords before the summer). Meanwhile, public law practitioners will continue to grapple with the impact of the legal aid cuts.

Unless individual MPs and Peers act to encourage the Government to follow the JCHR recommendation, no full parliamentary debate on the impact of those important – and chilling – cuts will take place.   A motion to annul the Regulations has already been tabled in the House of Commons, but no date for debate yet secured. A motion to regret, tabled by Lord Pannick QC, is due for debate on 7 May, shortly after Peers return from recess.

The emerging view from Parliament properly reflects a more nuanced view of democracy than that seemingly adopted by the Lord Chancellor. That view – aptly illustrated by the excellent analysis of the JCHR – recognises the importance of checks and balances and the proper function of the Executive, Legislature and the judiciary in upholding government by the rule of law.

As officials prepare a Minister to respond to the Lords debate – and pen a Government response to the JCHR report – they might do well to revisit the Lord Chancellor’s statutory duties and their understanding of the constitutional function of judicial review. The JCHR reiterates that judicial review helps ensure that decision makers act within the bounds of the rules set by Parliament. It concludes that it should be for Parliament to determine the proper scope of these changes. Should the Lord Chancellor repeat his view that these reforms are designed to preserve Parliamentary decision making, he may find some MPs and Peers are not easily persuaded.

JUSTICE has prepared full briefing on the Civil Legal Aid (Remuneration)(Amendment)(No 3) Regulations and on the Criminal Justice and Courts Bill. For more on the work of JUSTICE, see www.justice.org.uk or @JUSTICEhq.

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