School’s out? Peers ask Government to use summer holidays to reflect on controversial judicial review reforms – Angela Patrick

RCJ restricted accessAngela Patrick, Director of Human Rights Policy at JUSTICE provides a summary of the House of Lords debate on Government proposals to reform judicial review in Part 4 of the Criminal Justice and Courts Bill.

As the House of Lords closes its gilded doors for the long recess, the Westminster village enters its equivalent of the school holidays. Yet, as Ministers pack their red boxes and MPs head diligently back to their constituency business, the House of Lords – debating the Committee Stage of controversial judicial review proposals in Part 4 of the Criminal Justice and Courts Bill – may have suggested that officials and Ministers yet have some homework to do.

Summing up the debate – and thanking Lord Faulks, the Minister responding to a barrage of criticism from all benches, for his efforts – Lord Pannick acknowledged that many of the Government’s proposals on judicial review had been driven by the Secretary of State for Justice and Lord Chancellor, Chris Grayling. He suggested that both Ministers would do well to get together over the summer to digest the Peers’ concerns – perhaps on a convenient beach. There were so many flaws in the Bill that Lord Faulks should pack a red pen with his sunscreen (HL Deb, 30 July 2014, Col 1650).

Lord Woolf in courteous terms, implied that the Government may yet have to have to hit the books and went so far as to offer a complimentary copy of De Smith on Judicial Review (HL Deb, 28 July 2014, Col 1465). The seventh edition should make weighty, if informative, beach reading.

The Part 4 proposals for reform of judicial review procedure have been dissected at some length in this blog already. There are four key changes being debated:

(a) a change to the materiality test to require the court to refuse both permission and remedy in cases where it is “highly likely” that the “outcome” for the applicant would not have been “substantially different if the conduct complained of had not occurred” (Clause 64);

(b) to introduce financial disclosure rules for all judicial review applicants, requiring financial information to be provided on those funding or “likely to be able” to fund the litigation (Clauses 65-66);

(c) a reversal of the presumption that costs orders are not generally made against interveners; to presume that costs of an intervention are always recoverable against interveners by all parties, bar in exceptional circumstances (Clause 67); and

(d) codification of the rules on protective costs orders, barring any order pre-permission and permitting Ministers to amend the conditions for when an Order can be made (including criteria relating to public interest) by secondary legislation.

Amendments were tabled to all four proposals, with Peers primarily proposing that the most controversial parts be excised from the Bill. Other amendments, broadly, were designed to preserve the discretion of individual judges to do justice in individual cases.   A third broad group of amendments would remove far reaching “Henry VIII” powers being granted to Ministers to revisit the reforms again in secondary legislation.

The Committee Stage debate started on Monday and concluded yesterday evening.   This blog is too brief to do justice to the many Peers who spoke. However, there were some highlights – and points of note in the Government’s response – in respect of each of the four key proposals.

“Highly Likely” (Clause 64)

These proposals – together with Clause 67 on interveners – were subject to the most robust criticism. Lord Brown, for example said:

“What the Government are proposing here is a heresy. With regard to Clause 64, it is a double heresy…In truth, these provisions would make serious inroads into the separation of powers; they would represent a significant shift in the constitutional balance between the judiciary and the Executive. That is the basic heresy that underlies the entirety of Part 4…The other separate heresy lies in Clause 64 itself, and the proposition that a public body has behaved unlawfully – perhaps flagrantly unlawfully – in reaching a particular decision, the court must nevertheless ask itself whether it is “highly likely” that the outcome would in any event have been substantially similar” (HL Deb, 28 July 2014, Col 1440)

Only two Peers rose to support the Government on this proposal, Lord Horam and the former Lord Chancellor, Lord MacKay.

Lord Horam raised his concern about the rising numbers of judicial review claims and that challenges caused both delay and cautiousness on the part of public bodies.   In the large part, these concerns are easily answered (see HL Deb, 28 July 2014, from Col 1443). The Joint Committee on Human Rights explained that the statistics do not support the Government’s allegation that judicial review has expanded exponentially – beyond immigration cases, the figures have increased slightly, but have broadly remained static (see para 30).

If these measures are designed to address delay, they are misconceived.   Lowering the hurdle where materiality is in issue will lead to “mini-hearings” or dress rehearsals at permission stage. Cases will take longer and there will be a greater risk of satellite litigation. Finally, while it is right that public authorities should exercise caution in order that they act lawfully, the Government has produced no evidence to suggest that authorities have acted with excessive? and inhibiting fear of judicial review. If they had, a revision of the Cabinet office guidance might be more appropriate than inhibiting the process of legitimate judicial scrutiny?

Lord Mackay raised similar concerns about delay. However, he also expressed his view, counter to that expressed by Lord Woolf, Lord Pannick and others, that this new Clause would not prevent individual judges making a declaration on the law in cases despite a judgment that it was “highly likely” that there would be no substantial difference to the outcome for the applicant in the case.   His reasoning was as follows:

“[I[f the court thought that the outcome should be a declaration, it would not be able to do so because it is the outcome for the applicant. If the outcome for the applicant is a declaration that there has been a practical wrong or unlawful practice and the applicant could secure that as a declaration, it would be part of the outcome. It might not make much difference for the rest of his situation, but at least that would be part of the outcome that the court might think was possible. At the early application for leave, that point could certainly be considered” (Col 1455)

Unfortunately, in reading the text of the Bill, set out above, it is far from clear that the Government intended “outcome” for the applicant to refer to the outcome of the judicial review proceedings, but the outcome of the original decision making process.   This would, and might yet, be a point for argument before the courts. The Minister did not address this point directly in reply. Yet, if Lord Mackay is right, the effect of Clause 64 could be tempered in cases involving declarations alone.   If a judge is free to consider the benefit of a declaration of illegality as part of the “outcome” of the proceedings, it is arguable that in most cases, even where an issue becomes academic, it would be open to the court to proceed. This of course, would not address the concern that asking judges to second-guess the outcome of a decision-making exercise had a public authority acted lawfully would step far outside the bounds of the proper constitutional limit of their supervisory role.

Financial Disclosure (Clauses 65 – 66)

Many Peers stressed that the courts already have adequate power to deal with third party funders who act improperly by making costs orders against them and that these changes could have nothing but a chilling effect.   For example, Lord Brown explained:

“[T]here is an existing and entirely satisfactory body of law which governs the ability to pursue costs orders from unseen funders and backers of litigation – those who mischievously or for their own advantage support litigation – but not from those who, appropriately and philanthropically, rightly back public interest causes” (Col 1603)

In response, the Minister argued that the Government did not intend these measures to be a shift from the existing common law position, but they were designed to increase transparency and encourage the courts to use those powers in practice (See Col 1612).   However, this position is difficult to defend, as Lord Davies responded:

“The Minister said two things, if I heard him right. One was that the intent of these clauses is not in any way to change the common law basis of the criteria for determining liability for the costs of a judicial review…At the same time, he said that there are categories of people who have been getting away with avoiding financial liability for judicial review at the expense of the taxpayer when they should have been liable. Can I put it to him that those two statements are not logically compatible? (Col 1613).

The clarifications offered did appear to raise more questions than answers. For example, the Minister explained that someone making a “small contribution to a fighting fund without further ado” would not be liable for costs. What is small? What is “further ado”? If I make a contribution to the Lewisham Hospital fighting fund of £1000 and then carry a banner will I be liable for costs? What if I write a blog in support of the campaign? Ultimately, it is, however important that the Minister recognised that the true scope of these measures would be for determination in Rules of Court (following engagement with the Lord Chancellor) and that ultimately we “cannot, of course, prejudge the courts’ approach to Clauses 65 and 66” (Col 1612).

This kind of muddled assurance, perhaps, will give little comfort to individuals or organisations who might wish to support individuals who are unable to secure legal aid and seek to explore alternative routes of funding.

Interveners (Clause 67)

At second reading, the Minister made a commitment to think again and consider the Government’s position on Clause 67 and costs for interveners. Unfortunately, no further commitment was made in the House of Lords. However, two points of note arise from the Ministers contribution on interveners’ costs.

First, the Minister repeated a now familiar “red-herring”: interveners who are “invited” by the court to make submissions – as opposed to those who voluntarily apply – will not be subject to the new statutory provisions (Col 1628). Thus, Government departments with a statutory duty in respect of particular issues may be excused.

Baroness Kennedy pointed out that in many cases judges will not know that there are wider issues on which an intervention might assist, or information available that might inform their deliberation until an application to intervene is made by an organisation with relevant expertise (Col 1630).

One must also ask: who are the interveners who might be “invited” to intervene? The Minister appeared to suggest that it would be for individual judges to invite those they thought might assist in any case, subject to their inherent jurisdiction. So, if an individual judge happens to be familiar with the work of JUSTICE, that judge might favour JUSTICE as an intervener over Liberty? What if other experts in the field disagree – not unknown – would an intervention by an organisation who challenged the expertise of the organisation chosen by the judge be liable to the proposed costs risk? This system seems far removed from the current arrangements where interveners offer assistance, subject to responses by the parties, and the ultimate consideration and control of the judge acting as an impartial gatekeeper.

Secondly, the Minister made a distinction between organisations which might be able to put material before the court which may be “helpful in deciding between the parties” and organisations which “habitually” intervene and “use judicial review as part of a process”. The Minister appeared to suggest that for interventions to raise wider public interest points – about the credibility of the judicial system, about the UK’s international obligations, or the wider relevance of the case to the public interest – would not be appropriate. Yet, in difficult and novel cases raising new questions of law, this appears to be where judges find intervention most useful (See, for example, Baroness Hale, in last year’s Who Guards the Guardians?). This unfortunately chimes closely with the Lord Chancellor’s earlier refrain that judicial review must not be used as a “promotional tool”.   The Government has produced no evidence that the courts are not able to use their existing powers to control unreasonable interventions. Lord Pannick closed:

“[T]he Government have presented no proper defence of this clause, and I ask the Minister to ask himself and the Secretary of State two questions in particular: what is really the mischief that is being addressed here and what will be the inevitable consequences of this clause. The inevitable adverse consequence is that the public interest group that is considering intervening will say to itself, “We simply cannot bear the risk, and therefore we will not intervene” […] (Col 1631)

Cost-capping (Clauses 68 – 70)

Again, there was little movement on the issue of cost-capping and protective costs orders.   Two points are worth comment.

Lord Pannick again stressed the lack of evidence for reform.   He cited single figure cases on non-environmental protective costs orders as evidence of there being simply no reason to legislate. The Minister responded:

“We have, however, to consider not only the past position but the position prospectively”      (Col 1643)

The Minister was referring to the likelihood that judges might adopt a more loose approach to PCOs. However, it is interesting that, as it may become more difficult for individuals to secure legal aid for judicial review, more individuals and organisations might need the protection of a PCO in order to pursue a point in the public interest.

Secondly, the Minister was pressed to explain why the Secretary of State should have a broad based “Henry VIII” power to rewrite the rules on PCO without proper parliamentary scrutiny. He explained:

“Removing the powers to amend these lists…would prevent us from responding quickly should it become necessary.” (Col 1644)

The power of the Government to determine the scope of the public interest for the purposes of litigation in which Government is likely to be a defendant is, at the least, a constitutionally sensitive question. Administrative convenience cannot be an answer to a diluted form of parliamentary engagement in this question. In any event, it is difficult to imagine the circumstances where the Government might need to legislate with haste to change these rules.

Finally, Peers took this occasion to table amendments to the Bill on legal aid, limiting Ministers’ power to further shift the legal aid landscape for judicial review – or introduce a residence test for legal aid – by secondary legislation.   Baroness Campbell summed up the concern of many Peers:

“The issue of legal aid is inherently linked to the provisions in Part 4. It is part of a package of reforms that seem to have a very strong comment thread – they make it so much harder to challenge public bodies when they act unlawfully. That right to challenge belongs to every citizen, whatever their background or means, but without legal advice and representation it is a truly empty right.” (Col 1659)

What next?

Each of the proposed amendments was withdrawn, with a threat of votes at Report Stage, should the Government position further calcify over the recess. This was no “last-day-of-school” shirking on the part of the upper house. Convention rarely sees votes at Committee Stage, which allows Peers to push Ministers to make genuine concessions and to consider thoughtful interjections from the floor.   The Minister gave little ground in debate.   Whether on a beach, or otherwise, Ministry of Justice officials and Ministers may wish to take seriously their judicial review “homework” before the House reconvenes in September.

Report Stage on the Criminal Justice and Courts Bill in the House of Lords is expected in the Autumn (probably October). Full JUSTICE Briefing on the Bill is available here. For further information on the work of JUSTICE, see www.justice.org.uk or @JUSTICEhq. 

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