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

1 July 2014 by

mcenroeLast 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 or @JUSTICEhq.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Reblogged this on Citizens, not serfs and commented:
    When the government finds rule of law inconvenient, alarm bells should start ringing.

  2. Reblogged this on Europäische Gerichtshof … call me CJUE and commented:
    The House of Lord’s first reaction to British Government’s proposed changes to judicial review (Criminal Justice and Court Bills) had its second reading….

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: