Judicial review changes in the Criminal Justice and Courts Bill
Laura Janes, legal co-director at the Howard League for Penal Reform, writes:
The Lord Chancellor Chris Grayling has not minced his words when it comes to judicial review. Alongside his announcement of judicial review proposals in September 2013, he wrote in the Daily Mail under the headline, ‘The judicial review system is not a promotional tool for countless left-wing campaigners’ (6 September 2013). Legal aid minister, Shailesh Vara, echoed these sentiments in response to the High Court’s decision to refuse the Howard League and the Prisoners’ Advice Service permission to judicially review cuts to prison law legal aid ( EWHC 709 (Admin), 17 March 2014)(see also page 4 of this issue). Shailesh Vara claimed that ‘legal aid should be used for addressing genuine injustices – not as an issue for campaigning by pressure groups’.
The changes to judicial review announced by the Lord Chancellor on 5 February 2014 in Judicial review – proposals for further reform: the government response
as a ‘tough package’ are presently being rushed through parliament in the Criminal Justice and Courts Bill.1Available at: www.gov.uk/government/publications/judicial-review-proposals-for-further-reform-the-government-response and at: http://services.parliament.uk/bills/2013-14/criminaljusticeandcourts.html respectively.
If the bill is passed, it is likely that judicial reviews brought or supported by non-governmental organisations (NGOs) in the public interest will be a thing of the past. The proposals are aimed specifically at deterring NGOs from getting involved in judicial reviews. Although NGOs will not be barred altogether from bringing public interest challenges (as proposed originally) the changes to the rules on costs will expose them to enormous costs risks. The changes will make it much harder for NGOs to get court orders to prevent them from incurring unlimited costs expended by the other side if they lose the claim (clauses 56 and 57).
Worse still, against the advice of the senior judiciary, the Ministry of Justice has pursued its bizarre plan to make interveners liable for the costs incurred by the other parties from issues arising from their intervention (clause 55). This is completely out of kilter with the usual rule that the loser pays the winner’s costs. Interveners do not win or lose: they are only permitted to assist the court if they can add real value. The perverse consequence of this proposed rule would be that the more helpful the intervention, the greater the costs risk to the intervener concerned.
In a speech to charity leaders in March 2014, the Lord Chancellor criticised the charity sector for putting too much emphasis on campaigning and not enough on service delivery; he suggested that charities need to behave in a more ‘commercial way’. If the proposals for judicial review go through, litigation in the public interest will be a commercial liability for the sector; there is no way that NGOs will be able to take the risk of being involved in litigation. There are other commercial consequences to the proposal: our jurisprudence, a critical part of the UK legal services industry worth around £25bn a year, will be all the poorer for the changes.2See: www.lawsociety.org.uk/representation/research-trends/market-assessment-2012-13/.
Worse still, when combined with the dismantling of legal aid that will restrict most ordinary individuals from bringing claims, the changes to judicial review will prevent civil society from getting the law to do anything about the systemic problems we face.