House of Lords debates Bill
The Criminal Justice and Courts Bill: House of Lords Second Reading, 30 June 2014
YLAL member, Miranda Mourby, reports on the debate in the House of Lords on the government’s proposed changes to judicial review.
The Bill was commended to the house by The Minister of Justice, Lord Faulks, who said that Part IV would introduce sensible, appropriate and proportionate modifications to the procedure in applications for judicial review. He stressed that the government was not abolishing judicial review.
He stated that the government’s respect for the rule of law is a ‘significant factor in attracting foreign investment,’ and that the provisions of Part IV are a ‘balanced package of measures which will ensure that judicial review will continue to operate effectively and appropriately.’ The opposing view of many public law practitioners is that, under the current proposals, the balance would be tilted too far in the direction of the defendant.
Lord Faulks claimed that the use of judicial review ‘has grown significantly over recent years’ and that many of these cases have lacked merit, or have constituted attempts to use ‘minor technicalities’ to create delay.
Lord Beecham called this claim ‘bogus.’ The Bishop of Oxford agreed that ‘While there has been a case for the overuse of judicial review, in planning or immigration matters, for example, changes have already been made. It is no longer possible to sustain the claim that there has been massive expansion in judicial review cases requiring urgent action.’ He argued that the charge that JR has become a campaigning tool for pressure groups is not recognised by those who know the field well. He was supported in this by Lord Pannick who suggested that the claim that activists use applicants as ‘human shields’ to further their left-wing agenda is sensationalist and misleading.
Baroness Campbell of Surbiton stressed that the bread and butter of judicial review was not about Richard III but is about ordinary people standing up to public bodies when they get it wrong. She said that disabled people had, more than any other group, experienced the cumulative burden of government reforms in recent years. As a former commissioner on the Disability Rights Commission, she had herself experienced this when ten years ago a Do Not Resuscitate order was wrongly placed on her records when she was admitted to hospital with pneumonia. She drew parallels between this and the judicial review case the Tracey family successfully brought before the Court of Appeal.
Baroness Barker raised a similar concern on behalf of Mind, whose role is, she said, also to stick up for people often on the rough-end of public law decision-making.
Lord Beecham claimed that Clause 64 was an example of the government substituting their judgment for that of the judiciary. It creates a mandatory requirement to refuse relief at the permission stage if it appears that the outcome would have been no different if the conduct complained of had not occurred. He further objected that the court could not resolve this question at the permission stage, without a full determination of the case. Baroness Campbell objected to obligatory judicial ‘guesstimation’ of what disabled people might have said as part of a consultation. Lord Pannick pointed out that Clause 64 was unwise on practical grounds and would create satellite litigation.
Lord Beecham condemned Clause 69, introducing a duty to limit the amount recoverable by an applicant under a controlled costs order as another unreasonable fettering of judicial discretion.
Currently, judges have a discretion to make protective costs orders (“PCOs”). Lord Faulks said that the bill would affirm this in statute. However, as well as ‘affirming’ this power, the statute would also limit this discretion by limiting PCOs to cases ‘which concern matters of high public interest’; potentially setting the bar for a PCO very high. Lord Marks asked why an innocent member of the public should not have the protection of a costs order in cases of no general public importance but where there is nonetheless serious injustice.
Costs & Financial Disclosure
Lord Faulks stated that clause 65 would not put everyone who donated to a campaign at risk, but argued that there is a need for ‘rebalancing of the financial risk of bringing or driving a weak review,’ and suggested that the people who ‘in reality control, guide and stand to benefit from a judicial review’ operate through ‘shell companies’ through which the courts need to be able to ‘reach.’ He referred to the need to protect the interests of ‘hard-pressed taxpayers.’
Lord Clinton-Davis suggested that judicial review would become the province of the rich, but Lord Faulks disagreed. He argued that the provisions in Part IV replicated the position in other civil litigation. However, it was pointed out by Lord Pannick that the requirement for financial disclosure under Clause 65 would be exclusive to judicial review.
The Bishop of Oxford and Baroness Campbell argued that the proposed reforms to costs must be considered in the light of a climate in which it is already more difficult to fund judicial review cases due to the cuts to legal aid.
Lord Beecham drew attention to the concerns raised by Liberty that Clauses 65-66 may discourage charities, solicitors acting pro bono, and even family members from supporting a claim where no legal aid is available. Baroness Campbell asked – would a cousin giving £5,000 to help fight a case be putting their home at risk?
Lord Paddick referred to his successful judicial review of News International, which had only been made possible by an anonymous benefactor who had underwritten their costs. He requested clarification as to whether this would still be possible under the proposed regime.
Particular concern was expressed at the effect of Clause 67 in discouraging charities or other specialist organisations from intervening in judicial review cases. Baroness Campbell cited the interventions of the Disability Rights Commission and the Equality and Human Rights Commission in a case which led to the overturning of a local authority’s blanket ban on manual lifting and handling, which then had consequences for disabled people throughout the country.
Lord Pannick welcomed the indication that the Government might look favourably on amendments to Clause 67, and argued that interveners often provide the court with experience and specialism which is useful in the resolution of the case. He was tro
ubled by the proposal for interveners to pay the costs of their intervention, save in exceptional circumstances, describing it as wholly unnecessary.
Lord Beecham expressed a hope that the House could work together to improve the legislation. Lord Marks of Henley-on-Thames welcomed the indication that the government is open to persuasion regarding provisions which would make it harder for campaigning organisations to raise money, and would discourage them from intervening in cases, but said this persuasion would ‘have to go a long way to produce a lot of movement.’
Baroness Campbell drew attention to the powerful critique of the proposals published by the Joint Committee on Human Rights, and urged the House not to make access to justice the final injustice.