Email your MP about new bill
The Criminal Justice and Courts Bill is having its second reading on Monday 24 February.
This is an important bill because, despite its name, if passed it would increase executive power and reduce access to justice for judicial review. It has been put in a slot on the first day back from Parliamentary recess so many MPs may not be there.
Please can you ask your MP to attend the debate and highlight his or her concerns? We have drafted some email text that you can copy and paste into a message (see below). Please personalise this with your own concerns. If you are worried about how this will affect an interest group you work or volunteer with please explain that.
****You can find details to write to your MP online here.***
DRAFT EMAIL TEXT TO MPs
Dear MP NAME
I write as your constituent to ask you to attend the second reading of the Criminal Justice and Courts Bill on the afternoon of Monday 24 February at around 3pm and raise concerns about the impact this bill will have on access to justice and our constitution. I am also writing to let you know about related changes to judicial review to be pushed through via secondary legislation in the next through weeks.
This bill is important to me because, if it is passed, it will have a big impact on access to justice and the rule of law. I am concerned it is being rushed through Parliament without the chance for proper debate. The second reading is on the first day back from recess when many MPs may not be in the chamber, which is why I would be so grateful if you could attend to express my concerns.
The bill covers a huge range of issues to do with criminal and civil law. If passed it will give wide powers to Government to make a range of significant further changes, including changes restricting judges’ powers, by secondary legislation. The Bill encroaches on the discretion of the courts against the advice of the senior judiciary.
Here are three examples of why this bill has constitutional importance:
- Change to legal test about the likelihood of a different outcome for the applicant in judicial review cases: At the moment the court can refuse to grant a remedy when the decision would inevitably have been the same if it was made lawfully. The bill would lower the threshold. Judges will be required to refuse to grant relief if it was “highly unlikely” the outcome would not have been substantially different if the conduct complained of didn’t occur. This forces the court to shift the focus away from good decision making to second-guessing the outcome, which goes against the purpose of judicial review. It is in the public interest to ensure good decision making by public bodies.
- Costs penalties to third party interveners in judicial reviews: There will be a new presumption that anyone intervening in a case must be liable for costs if any party asks the Court to order them to pay. This seems designed to discourage charities and other organisations that intervene in cases in the public interest to assist the court. In its response to the Government’s consultation on changes to judicial review the senior judiciary warned against this step and highlighted that it is totally unnecessary as it can order costs anyway at the moment if necessary: “The court is already empowered to impose cost orders against third parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court.” (Paragraph 37 of the response by the Senior Judiciary to Judicial Review consultation).
Supreme Court judge, Lady Hale, said in her speech to the Public Law Project Conference on 14 October 2013:
“As a general rule, organisations which intervene in the public interest should neither have to pay the other parties’ costs or be paid their own, unless they have effectively been operating as a principal party (rule 46): if they behave properly, the principle that costs follow the event should not apply to them.”
- Changes to orders protecting costs in public interest cases: The Bill raises the bar for the cases that can attract costs protection in the public interest and removes the possibility of any costs protection before the permission stage – judicial review cases are increasingly front loaded to comply with the rule that they should be settled early if possible but with the consequence that the costs at the initial stage can be very high. It is likely that this rule will prevent public interest challenges from being brought because the costs risk will be too great. The Bill also contains powers for the Lord Chancellor to change the factors that the Court MUST take into account in granting an application through secondary legislation.
The impact of this bill must also be seen against the backdrop of further cuts to legal aid that I am very worried about. Extensive changes to legal aid mean that many problems that could have been resolved quickly, simply and easily are now impossible to deal with: the research by Young Legal Aid Lawyers “Nowhere else to turn: one year on” (www.younglegalaidlawyers.org/Nowhere-else-to-turn-part2), shows MPs have found that they already cannot help constituents with unmet legal need.
Along with the changes in the Bill I have mentioned above, the Government announced on 5 February 2014 that it would change the funding regime for judicial review cases. The changes will mean that lawyers will have no guarantee of being paid unless and until the Court grants permission. This will inevitably have a chilling effect on access to justice and public interest cases as lawyers may be unable to risk not being paid for thousands of pounds worth of work. These changes will be pushed through in secondary legislation without full scrutiny, even though Parliament carved out specific exceptions to protect legal aid for judicial review in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As soon as this legislation is laid over the next few weeks, I would like you to register your concern by either laying a motion or prayer against it, signing up to such a motion or urging colleagues to do the same.
As a member of Young Legal Aid Lawyers I am concerned about how the clients we work for will find it harder to get the help they need.
Thank you very much for taking the time to read my email. I hope that you will be able to attend the debate and I would be delighted to provide you with any further information to assist you.