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Criminal Justice and Courts Bill: An Attack on Judicial Review

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

Judicial review is the process by which individuals, businesses and other affected parties can challenge the lawfulness of decisions, actions or inaction of public authorities, including Government Ministers, local authorities, or other bodies exercising public functions. On 6 September 2013, the Justice Secretary, Chris Grayling, launched a consultation examining proposals aimed at ‘reducing the burden of judicial review’. These proposals were then included in the Criminal Justice and Courts Bill (‘the Bill’), which has since received strong opposition in the House of Lords, resulting in ‘ping-pong’ between the two Houses, with numerous amendments made at each stage. In January 2015, Chris Grayling made several concessions regarding the proposed reforms to judicial review in an attempt to get the Bill passed; but, will the Bill in its current form alleviate the problems perceived by the Ministry of Justice, or is it an affront to democracy and the rule of law in the UK?

The proposals for reform

The Government, in introducing the Bill, outlined its key aims as speeding up planning cases and tackling the high potential for abuse of judicial review by those seeking to generate publicity, it claims, or delay implementation of decisions that had been properly or lawfully taken. To this end, the Government introduced various proposals relating to civil and administrative proceedings generally, with three key changes relating specifically to the judicial review procedure. Despite being ‘technical’ and ‘superficially boring matters of legal procedure and costs’, Nick Armstrong of Matrix Chambers warns that they are no less dangerous for that, and so it is important that their impact be considered.

The first of these proposals concerns the likelihood of a substantially different outcome for the applicant. At present, the court may refuse to grant permission or award a remedy to an applicant where it is ‘inevitable’ that the complained of failure would not have made a difference to the original outcome. In the Government’s view, inevitability is too high a threshold, and so they introduced a provision in the first draft of the Bill stating that the High Court must refuse to grant relief in an application for judicial review if it appears to the court to be ‘highly likely that the outcome for the applicant would not have been substantially different’ had the conduct complained of not occurred.

There are a number of important problems with this proposal. Firstly, whether the outcome would have been different or not, it is arguably always in the public interest to correct the illegality of a public body’s decision. Also, the role of the court in a claim for judicial review is not to challenge the final decision of a public body, but rather to challenge the legality of the process by which it came to that decision. In assessing, as they would now be statutorily obliged to, what the public body would have decided had the illegality not occurred, the court would be seriously overstepping its mandate, arguably acting ultra vires.

Nick Armstrong argues that the changes as originally proposed would in fact add to the number of judicial review proceedings being brought, rather than reducing the caseload. If the court throws out a claim on the ground that it is highly likely the outcome would not have been substantially different for that particular applicant, it is perfectly possible that the court, in the process, would still cast doubt as to the legality of the decision of the public body. This could result in further litigation being brought by a different applicant who has been impacted in the necessary way to bring an application, as it was not possible to rule in the first case.

Due to defiant opposition from the House of Lords, the Ministry of Justice have made a concession on this provision in January. It is now possible for the court to disregard the new test, but only where the court considers it appropriate to do so for reasons of ‘exceptional public interest’. This does nothing to alleviate the problems above, however, as this discretion is so minimal as to raise the question of when it can actually be used.

The second of the Government’s proposed reforms concerns the provision and use of information about the financial resources of applicants, and the curtailment of the use of Protective Cost Orders. This reform appears to come in response to cases such as R (on the application of the Plantagenet Alliance) v Secretary of State for Justice and others. In this case, a limited company, namely the Plantagenet Alliance Ltd., was formed by members of the Plantagenet Alliance to challenge the Secretary of State for Justice’s decision to grant a licence to exhume human remains that were later confirmed to be those of Richard III. The Government was unable to recover costs from the Plantagenet Alliance Ltd. as the claimant company had an absolute Protective Costs Order. Under the proposed reforms, this would no longer be possible, as information on where the finance for the claim is coming from would need to be presented to the court before the liability for costs is attributed proportionately. This includes a ‘body corporate’ as in the Plantagenet Alliance case, meaning if the company has no assets, information as to the finances of its members must be provided instead. Also, it would be the case under the new law that a Protective Cost Order could only be granted in exceptional circumstances, where there is deemed a real public interest in hearing the case, though no guidance has yet been issued as to what would constitute a ‘real’ public interest.

The Justice Secretary says that the aim of this reform is to stop interest groups hiding behind an individual, but these changes will in fact prevent most group-funded cases, which are no longer eligible for legal aid. For example, Nick Armstrong asks whether a daughter would be willing to contribute £5000 to a case concerning the requirements of her mother when there is a risk that she would be liable for the defendant’s costs should the claim fail. These privately part-funded cases, Mr Armstrong argues, ‘are by definition cases that matter to people’, because they are supported by a group of people to the extent that they are willing to give financial aid in order to ensure accountability. If the number of ways to raise the necessary capital to bring a judicial review claim is restricted, then access to judicial review will be restricted as a direct consequence, which is an undemocratic step in the wrong direction.

The third key proposal concerns the costs liability of interveners in judicial review proceedings. An intervener is a person or body with specific expertise relating to the judicial review, which is granted permission by the court to either file evidence or make representations at the hearing. The new legislation introduces a presumption that those who apply to the court to intervene in a judicial review case will have to pay their own costs and, if requested by one of the parties, any costs they have caused the parties as a result of their intervention.

This proposal is dangerously problematic, as it threatens to prevent interventions that are not on behalf of powerful financial interests, or funded by the Government. In 2013, the Howard League for Penal Reform, the oldest penal reform charity in the world, intervened in a successful case brought by Just For Kids Law, which established the right of 17-year-olds to see an ‘appropriate adult’ on being taken into police custody, following the deaths of two 17-year-olds denied that right. In this case, the intervener played a pivotal role, and the Howard League see it as ‘perverse’ that an intervener would be saddled with the costs of the Government in responding to the intervener’s expert legal argument designed to aid the court in its decision-making process. These changes to the rules on costs of interveners also have no regard for the advice of the senior judiciary in their response to the consultation, who warned that ‘caution should be adopted in relation to any change’. It has also been argued in the past that interveners can often have the impact of reducing the cost/length of trial because of their expert knowledge in a particular field.

Justification for reform

As previously mentioned, the Ministry of Justice cites planning delays and abuse of the judicial review process as the justification for reform. However, it is difficult to believe that there are no ulterior motives for the proposals in the Bill.

In its response to the Ministry of Justice’s consultation, Asda, part of ‘the world’s number one retailer’, Walmart, and an active proponent of reform of the planning system, cited the delaying of a supermarket development in Skelton by six months as evidence of the unsatisfactory nature of the current state of judicial review. Both Asda and the Government say that the judicial review was found to be ‘totally without merit’, but the merit of a claim is often not easily determinable at the permission stage before all evidence is submitted, so the proposed changes would make little difference to the bringing of unmeritorious claims by competitors.

The Government also cites a 36-week delay to the expansion of Bristol airport, a 15-month delay to a retail development in East London, and an 18-month delay to a housing development in Carmarthenshire as further evidence that reform of the judicial review process is needed. This makes the true motivation of the Ministry of Justice clear, however. This is unquestionably another attempt by the Ministry of Justice to reform the law in a way beneficial to big businesses while considerably disadvantaging the less powerful in society, who, following reform, become powerless. This has already been seen with the reform of the legal aid system, where Chris Grayling attempted to trim fat where there certainly was none. As I have discussed previously, Grayling has also tried to attack the families of mesothelioma sufferers in this way, attempting to put their livelihoods at stake in order to benefit insurance companies.

The decision of the Administrative Court in the ‘Suppiah’ case in 2011 shows the protection the judicial review process in its current form affords the most vulnerable members of society. This case involved the unlawful detention of two failed asylum seekers and their children, aged one, two and eleven. The claimants sought to challenge the detention of minors in the detention facility by the UK Border Agency. Liberty acted as interveners in this case, with several other organisations, including Bail for Immigration Detainees, offering evidence in support. Since the judgment has been handed down, there have been numerous improvements to Government policy on child detention. These changes to policy would have been much harder to bring about under the proposed reforms, as it would be harder for interveners to aid the court, meaning the rights of the most vulnerable, such as asylum seekers here, could be forgotten.

Out of the 44 published written responses to the Ministry of Justice’s consultation on the Criminal Justice and Courts Bill, only Asda support the proposed reforms, with almost desperate criticism coming from organisations such as the Bar Council, the Law Society, the Public and Commercial Services Union, the Criminal Justice Alliance, the Immigration Law Practitioners’ Association, among other leading legal organisations.

What next?

If the Lords accept the Bill in its current from, there will undoubtedly be a serious curtailment of the effectiveness of judicial review, which, in turn, threatens the rule of law in the UK. To say these proposals are distressing is to understate the problem. As Nick Armstrong outlines:

The reforms may well derail the essential constitutional protection of judicial review altogether. Few good solicitors will be able to continue. Few judicial reviews will then be brought. Even fewer interventions will be possible. Unlawful decisions and practices will go unchallenged.

With the general election looming, the Ministry of Justice, given their recent history, will not want to attract too much unwanted attention; yet, with the Houses so close to agreement on the Bill, we could see its effects in the near future. This is likely to be the final major reform conducted by Chris Grayling, whose time in office will not be remembered fondly by many in the legal profession.

Further Reading

Ryan Turner (KCTL), ‘Criminal Justice And Courts Bill: The Erosion Of Accountability’ 8 February 2014

The Guardian (Online), ‘Plans to restrict judicial review face further concessions’ 13 January 2015

The Guardian (Online), ‘House of Lords rejects government plans to restrict judicial review access’ 9 December 2014

The Guardian (Online), ‘Downing Street under pressure on plans to restrict judicial review access’ 26 November 2014

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Tagged: Judicial Review, Justice

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