Where now for the rule of law?

justicia  The reforms to judicial review proceedings in Part 4 of the Criminal Justice & Courts Act 2015 have been closely analysed in a timely report by JUSTICE, the Public Law Project and the Bingham Centre for the Rule of Law.

In his foreword to the Report, Lord Woolf speaks of his “fears for damage to the rule of law” from the changes, and urges those interpreting Part 4 to interpret and apply the legislation in a way which avoids or least interferes with the rule of law.

Let’s start with the basics – the function of judicial review. As explained in the Introduction:

Judicial review is the mechanism which allows people to challenge unlawful actions by public authorities before an independent and impartial tribunal.  In a country with no written constitution to regulate the relationship between the citizen and the State, this function takes on a particular constitutional significance.  It is a crucial check on the abuse of power, working to ensure that Ministers and other public authorities act within the rules set by Parliament and in accordance with their common law duties.  Access to judicial review is a key element of our unwritten constitutional arrangements for the protection of the rule of law.

The Report quotes Lord Dyson in R (Cart) v Upper Tribunal [2011] UKSC 28:

…there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review.

Turning to the four main areas of reform brought in by Part 4:

  1. Materiality and the highly likely test

A duty on the court to refuse permission for judicial review or relief where the outcome would be “highly likely” to make no substantial difference for the applicant in the claim – see section 84.

The Report notes that the common law has always recognised the courts’ discretion to limit access to judicial review in cases where a challenge could have made no material difference to the outcome in an individual case – but also the impropriety of courts substituting their view of the substantive merits of the case.

The Report urges a “highly cautious” approach to the highly likely test with the court only refusing an application for permission for judicial review if it can confidently conclude, without detailed inquiry, that the highly likely test is a knock-out blow.  “Very remote” – i.e. so unlikely that it does not warrant the court’s intervention – is suggested as the appropriate threshold (e.g. winning the lottery twice?  The Report cites a Mirror article which considers such highly unlikely events…)

The Report also urges caution when applying the highly likely test to substantive rather than procedural errors, and suggests that cases involving minor procedural defects may still need to be heard where it would be in the public interest to do so.  It astutely points out that it gives rise to the prospect of a “dress rehearsal” permission stage, risking greater cost and delay (and thereby defeating the purpose of the reform).

  1. Financial disclosure and judicial review

A new financial disclosure obligation on judicial review claimants to disclose how their claim is being funded before their application can proceed – see sections 8586.

One of the most concerning parts of the reforms relates to financial disclosure obligations and their potential impact on the willingness of claimants, including public interest groups and charities, to bring judicial review claims. Coupled with the rules on interveners and costs (see below), this risks creating a chilling effect on public law challenges.

The provisions are to be supplemented by rules of court, drafted by the Rules Committee.

The Report notes that the financial disclosure obligations will have to be applied in a manner consistent with the right to respect for private life under Article 8 ECHR and the right of access to the courts under Article 6 ECHR. It urges that the information required must be circumscribed and limited to what is necessary, and that adequate safeguards are required for non-disclosure to other parties and to the trial judge.

The Report gives a stark warning about the potential impact of these reforms:

The legislation is unclear and ill-defined; further legal uncertainty in the rules of court which govern the extent of the information to be disclosed by applicants will compound the likelihood that these measures will have a chilling effect and will act as a deterrent to those seeking legitimately to challenge unlawful public action.

  1. Interveners and costs

A new duty on the court to award costs against interveners in any case where specified criteria are satisfied – see section 87.

It is unclear what kind of problematic interventions the reforms are targeted at, especially given the need for the permission of the judge to make an intervention in the first place. As the Report notes, interventions have proved valuable to the senior judiciary.

The new provisions go further than existing practice by creating a new duty to award costs against the intervener where specific conditions are satisfied, including where the intervener has acted in substance as the sole or principal party, where their evidence and representations have not been of significant assistance to the court, where a significant part of the intervention related to matters that it is not necessary for the court ot consider or where the intervener has behaved unreasonably.

The Report concludes:

To ignore the significantly higher deterrent effect of a potential costs order on the voluntary and not for profit sector would substantially limit the ability of the court to hear reasonable, helpful interventions, a result inconsistent with the intention of Parliament.

  1. Costs capping orders

The framework for the operation of Protective Costs Orders (PCOs) has been placed on a statutory footing – see sections 88-90.

The Report expresses concern that any new criteria in regulations which operate fundamentally to undermine the ability of the court to provide costs protection in public interest cases will be subject to question. A new statutory limit restricting the power of the court to make costs capping orders until after permission has been granted could be applied in a manner which fundamentally limits the purposes of the provisions.

Finally the Report notes the heady pace of change in recent years and their particular impact on access to the court for claimants – through heavier procedural burdens, new limitations on access to legal aid and inhibiting access to sources of third party support.

The constitutional function of judicial review creates a particular imperative for evidence-based and cautious reform, in a manner consistent with the rule of law. While there may be means to further increase the efficiency of the process, any further reform should be evidence based, proportionate, consistent in its impact on both claimants and respondents and respectful of the fundamental role which the remedy plays in our constitutional framework.

Let’s hope Lord Woolf’s fears aren’t realised…