On 27 November 2014, the Chartered Institute of Legal Executives (ILEX), the Law Society and the Bar Council published a joint briefing paper considering the Lords’ amendments to Part 4 of the Criminal Justice and Courts Bill 2013-14 and 2014-15 (Bill) and its implications for judicial review. Their paper urged MPs to vote in favour of the Lords’ amendments when debating the amendments on 1 December 2014.
Background to the proposals
The government’s proposals in Part 4 of the Bill, which are intended to tackle a perceived problem of “costly and spurious” judicial review cases clogging up the courts (see Opinion, Proposed changes to the judicial review process), have been controversial and have been widely seen as undermining the judicial review process, a “crucial tool” that allows individuals to challenge the legality of public authority decision-making. The Ministry of Justice (MoJ) has conducted various consultations on reforming the judicial review procedure (see Legal updates, MoJ consults on proposals to reform judicial review and Consultation on proposals for further reform of judicial review), following which, on 5 February 2014, the MoJ published its response to the consultations, together with the draft Bill (see Legal update, Criminal Justice and Courts Bill 2013-14 and government response to judicial review reform consultation published). For more information on the proposals, see Practice note, Judicial review procedure: a practical guide, Changes to the judicial review process.
Lords’ proposed amendments
The three areas of reform in Part 4 of the Bill, upon which the Lords had proposed amendments on 28 October 2014 and which ILEX, the Law Society and the Bar Council support in their joint briefing paper are as follows.
Clause 64 of the Bill: Lords’ amendments 97-10: likelihood of substantially different outcome for the applicant
The original version of this clause proposed that the High Court must refuse to grant relief on an application for judicial review if it “appears to the court to be highly likely that the outcome for the application would not have been substantially different if the conduct complained of had not occurred”. The clause has been widely criticised as:
- Blocking judicial review if the respondent could show that it was “highly likely” that the outcome for the applicant would have been the same if the public authority had made the complained of decision lawfully.
- Allowing public bodies to escape responsibility for unlawful decisions.
- Changing the role of judges in judicial review cases as they would be invited to second-guess how decisions have been taken.
- Confusing remedy with unlawfulness and potentially creating far more problems at earlier stages of judicial review cases, which is likely to lead to longer hearings as the court tries to decide what would have happened if the legal error had not occurred.
On the “highly likely” test, peers had voted in favour of retaining the judicial discretion and amending the clause so that the court may refuse judicial review if it concludes that it is “highly likely” that the applicant would not have been substantially different had the conduct complained of not occurred. The joint briefing paper urged MPs to support the Lords’ amendment, which was trying to ensure the courts could continue to clarify the law in cases where public authorities are misinterpreting the law.
Clauses 65 and 66: Lords’ amendments 103-106: provision and use of information about financial resources
The original version of these clauses in the Bill, if implemented, will force applicants for judicial review to disclose information about sources of finance “likely to be available” to them, with a view to this information being used by the courts when awarding costs. As the joint briefing paper states, these clauses raise the prospect of members of a family or community, who were not themselves party to the proceedings, being asked to pay costs. The government’s reason for the original clauses in the Bill is that it cannot understand how it is possible for a judge to take a decision on costs and other aspects of a judicial review, if he has absolutely no idea who is responsible for bringing it.
Peers had voted on 28 October 2014 to remove this new requirement for applicants to provide details of who was funding their applications while allowing judges to continue to use their discretion to act where they believe that there has been an abuse by applicants in individual cases. ILEX, the Law Society and the Bar Council’s joint briefing paper invited MPs to support the amendments.
Clause 67: amendment 107: interveners and costs
No one can intervene in a court case without the permission of the court. Permission to intervene in proceedings is not granted lightly but charities, specialist non-governmental organisations (NGOs), professional organisations and government departments are permitted to intervene in cases where they have information which may assist the court. Such interventions are carefully managed by the court, which has discretion to award costs against an intervener where justice requires it.
The original version of this clause, if enacted, will establish a rule that, in the absence of exceptional circumstances, parties who have been granted permission to intervene in judicial review proceedings will have to pay their own costs and, on the application by another party, any costs that they have caused to that party as a result of their intervention (whatever the result). It therefore introduces a radical departure from existing practice and removes the court’s discretion to manage the process. The government’s justification for the clause was to ensure that those who choose to become involved in litigation have a more proportionate financial interest in the outcome and this principle should extend to interveners.
The proposal has been widely condemned as having a “chilling effect”, which will deter charities, NGOs and others from providing the kind of assistance and information to which the courts attach value. If enacted in its current form, the clause is likely to reduce, if not extinguish, public interest interventions because the provision will make the likely costs of an intervention prohibitive. Peers debating the Bill on 28 October 2014 voted in favour of amending the clause to retain the court’s discretion in relation to requiring interveners to bear any increased costs that their intervention has on the parties to a judicial review claim. The joint briefing paper issued by ILEX, the Law Society and the Bar Council invited MPs to support the Lords’ amendments and to allow the court to continue to exercise discretion when awarding costs, thereby maintaining the valued contributions of interveners in law-making.
House of Commons debate on the Lords’ amendments
On 1 December 2014, the House of Commons debated the proposed amendments and voted to remove the amendments proposed by the Lords to the Bill. It did so on the basis that the Lords’ amendments would “take the heart out of the reforms by undermining any duty to give effect to the key requirements”. However, the House of Commons indicated that it had listened very carefully to the Lords’ concerns on clause 67 (third party interventions) and had proposed an amendment in lieu of amendment 107.
What clause 67 originally proposed, and what the House of Lords disagreed with, is the idea that only in exceptional circumstances and very rare cases would interveners be protected from paying the costs of all the parties involved. On the basis that the government appears to accept that approach was wrong, the amendments tabled propose that interveners would be liable for costs if their evidence and representations have not been of “significant assistance” to the court. Further, costs would be imposed if the intervener has behaved “unreasonably” and if a significant part of their evidence is on matters that are not necessary for the court to consider.
That amendment will now go back to the House of Lords for a vote on 9 December 2014, at which time the House of Lords will reconsider its opposition on most of the measures.