It feels like the threat of restrictive reform of judicial review (JR) is appearing at every twist and turn of this already awful year. Most troublingly, there is little sense of overall control of this reform or confidence that those driving it are aware of what is happening elsewhere.
While the MoJ’s proposals purport to be based on the IRAL’s detailed and considered findings, there is no reference to the Home Office proposals, which include restricting access to JR and – particularly worryingly – imposing fixed costs in immigration JR. It is not clear why the Home Office proposals were not explored in its submission to the IRAL,2Summary of government submissions to the Independent Review of Administrative Law, MoJ, 6 April 2021, page 12.
or why the IRAL panel was not asked to consider those proposals as part of its review. Elsewhere is the Independent Human Rights Act Review
and its awaited report.
As if the two concurrent consultations were not enough, we learnt of significant additional amendments to the rules governing interventions in JR at the Administrative Court User Group meeting on 22 March 2021. Changes to Civil Procedure Rules (CPR) Practice Direction (PD) 54A are already approved by the CPR Committee and will come into force before the summer holidays. The changes cover page limits for some pleadings, the use of electronic bundles, and some focus on interim applications and changes in pleadings. The most concerning change is a new requirement for applications for permission to intervene to be accompanied by the evidence sought to be relied on. These changes are done and dusted after a brief and informal consultation with the user group by Mr Justice Swift as lead judge of the Administrative Court. They are additional to the anticipated further CPR reform in the MoJ’s JR consultation.
CPR amendments might not sound like headline stuff, but against the backdrop of relentless, piecemeal, restrictive reform, the impact is likely to be significant. PLP is concerned that requiring interveners to produce drafts of evidence up front will have a serious negative impact on the quality, timing and number of interventions made. In discussions with other NGOs that use public law, PLP has noted the ‘chilling effect’ in the last few years of Criminal Justice and Courts Act 2015 s87 (which increased the likelihood of costs being awarded against interveners). In our view, this new reform will have a more significant negative impact on potential interveners’ readiness to step into litigation to assist the court. It is entirely proper for the CPR to be updated and amended from time to time. However, given the degree and range of high-level JR reform at the moment, it is regrettable that these restrictive measures were not considered as part of a logical and wholesale scheme of reform.
When considering interventions, it is worth remembering that interveners are only given permission to do so where they are able to provide assistance to the court that no other party is already providing. Front-loading evidence-gathering in the manner that will be required by PD 54A will drive away individuals and organisations that can legitimately assist the court. The new evidence requirement will probably make case management by the court more straightforward, and for perfectly legitimate reasons. However, driving parties away from intervening in public interest cases where they can help judges come to good decisions, looks and smells like a bad thing.
The requirement to produce often detailed draft evidence at such an early and tentative stage in the potential intervener’s involvement will conflict with the requirement to apply promptly (CPR 54.17). In the long run, this may well often make life harder for the courts to manage and prepare cases for hearings. Not only does the requirement disproportionately burden interveners, but it can make producing evidence much more difficult. Without having been made a party to the case, interveners will not always be able to secure copies of pleadings and relevant documents, in turn making it harder to formulate submissions and gather evidence.
Requiring interveners to prepare detailed evidence in advance will undoubtedly significantly reduce the number of applications, particularly from those representing marginalised and disadvantaged people. Potential interveners will have to carefully weigh up their chances of being granted permission against the resources they may waste if refused. We anticipate that this will particularly impact smaller and less well-resourced NGOs and charities. Smaller charities may no longer be able to justify resources spent collating testimonial or statistical supporting evidence without any certainty on return for that investment. Such interveners currently not only provide the court with useful expertise, but also give a voice to marginalised groups that are otherwise unheard. The risk of making the courts less inclusive pushes against access to justice and the direction we must head in.