Government's judical review reforms criticised by the Joint Committee on Human Rights in strident report
Published: April 30 2014
"Unjustified", with "significant implications for effective access to justice" and " problematic from the point of view of the rule of law". The Joint Committee on Human Rights today released a strident report on the Government's judicial review reforms. Following on from last year’s damning report into the implications for access to justice arising out of the Government's previous tranche of legal aid cuts, including the residence test for civil legal aid, today’s report undermines the Lord Chancellor's rationale for the ongoing judicial review reforms, both the changes to the payment regime for judicial review work that came into effect on 22 April 2014 and the measures in part 4 of the Criminal Justice and Courts Bill currently going through Parliament, and warns of their consequences. The report also highlights the inherent conflict in combining the roles of Lord Chancellor and Secretary of State for Justice, saying that there needs to be a "thoroughgoing review" of these roles given that The Lord Chancellor's "energetic pursuit of reforms which place direct limits on the ability of the courts to hold the executive to account is unavoidably problematic for the rule of law".
On the Government's evidence base for the changes, the JCHR states:
“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.”
On the proposal to prevent judicial review claims of decisions that are "highly likely" to have reached the same outcome in the absence of illegality:
“lowering the threshold to one of high likelihood gives rise to the risk of unlawful administrative action going unremedied and therefore risks incompatibility with the right of practical and effective access to court, which the European Court of Human Rights recognises as an inherent part of the rule of law. We are not persuaded that there needs to be any change to the way in which courts currently exercise their discretion to consider, at both the permission and the remedy stage, whether a procedural flaw in decision-making would have made any substantive difference to the outcome. We therefore recommend that clause 52 be deleted from the Criminal Justice and Courts Bill.”
On legal aid for work done on applications for permission in judicial review cases:
“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. Instead it constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking……. We recommend that the Government withdraw the regulations it has laid to give effect to its proposal, and introduce instead an amendment to the Criminal Justice and Courts Bill to provide Parliament a proper opportunity to consider and debate in detail this controversial measure with such serious implications for effective access to the courts to hold the Government to account.”
On interveners and costs
“We are concerned that the Bill will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.”
On protective costs orders
“Restricting the availability of costs capping orders to cases in which permission to proceed has already been granted by the court is too great a restriction and will undermine effective access to justice”
On the inherent conflict in combining the roles of lord chancellor and secretary of state for justice.
“We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office.”
The report noted that while it is the Government's prerogative to try to make judicial review proceedings more expeditious, it could not do so in a way that was inconsistent with the rule of law and limited access to justice. The report endorsed the Bingham Centre's report into streamlining judicial review, published in February 2014.
A spokesperson for the Public Law Project said today, in response to the report: "The Public Law project welcomes today's JCHR report into the judicial review reforms being pursued by the Government. We have long argued that there is no evidence base for the reforms and that they will have a severe impact on access to justice for disadvantaged groups and individuals. We hope that the findings of this report will urge the Government into reconsidering the changes."
The JCHR’s report can be accessed here.
PLP's 2009 research The Dynamics of Judicial Review Litigation: The resolution of public law challenges before final hearing, which debunks many of the justifications of the reforms made by the government is here.
PLP’s parliamentary briefing paper and suggested amendments to the Courts and Justice bill is here.