MPs urged to continue the campaign to stop Governments dodging legal challenges

25 November 2014

It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power. Standing up for judicial review is standing up for the rule of law.

The Chartered Institute of Legal Executives (CILEx), the Bar Council and the Law Society and the have written to MPs urging them to protect judicial review, the legal process which enables individuals to challenge unlawful Government decision-making.

Part 4 of the Government’s Criminal Justice and Courts Bill is designed to make it harder to challenge unlawful decision-making by Government and public bodies. Peers from all main parties last month amended the Bill, protecting judicial review from this legislative attack. The Lords amendments go before a Commons vote on Monday 1 December but the Government’s intention is to vote them down.

Nicholas Lavender QC, Chairman of the Bar Council, said: “Peers have made some very sensible amendments to address our concerns. The fact is that those in power sometimes get it wrong, and judicial review is an important check on unlawful action by the Government or other public bodies. It has been used to stop people being imprisoned without charge, care homes being closed unjustifiably, schools being moved without good reason, or planning permission being wrongly granted or wrongly refused.”

Frances Edwards, President of CILEx said: “The amendments made by their Lordships enable judges to apply tougher rules in appropriate cases, and not apply them where to do so would be wrong. This discretion is best held by the judge hearing the case, and we strongly encourage Parliament to not constrain judges from applying these rules fairly.”

The cost of judicial review is likely to be beyond the means of most people with the result that, for example, a family challenging the decision to close their relative’s care home may need to pool their resources to meet the costs. But the Government wants to make people who contribute to such a fund, such as friends, family or community members, potentially liable for the other side’s legal fees.

Law Society President, Andrew Caplen, said: “This could rule out judicial review for some of the weakest and most vulnerable in society and would make it easier for public bodies to act without regard for the law.”

Chairman of the Bar Council, Nicholas Lavender QC, said: “Encouraging judges to force your friends and family to fork out when you challenge a public authority will prevent many people from seeking redress. Judicial review should not be restricted just to those who can afford it.

Despite repeated calls from the third sector, the Government is still trying to make it harder for charities to contribute expert advice and guidance in judicial review proceedings. With the permission of the court, charities, NGOs and even government departments can ‘intervene’ in this way. Since this only happens with the permission of the court, it only happens when the court has decided that the intervention will assist the court in deciding the issues which arise in the case. However, the Bill will force judges to make interveners pay costs. This would undoubtedly deter experts from providing the kind of assistance which the courts find valuable.

Law Society President, Andrew Caplen said: “Expert organisations do not wade in to judicial reviews for fun. The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions. The Government’s plan will have a chilling effect on organisations who do this important work at their own expense.”

The Government is also trying to deny anyone the opportunity of seeking judicial review if the court thinks that it is ‘highly likely’ that the Government or other public authority would have come to the same decision, even if it had not acted unlawfully. However, the importance of judicial review lies not only in its ability to make a difference for individual applicants, but also in the fact that judgments can identify where the Government is behaving unlawfully and clarify the law, irrespective of the outcome for the individual claimant. When the Government has behaved unlawfully, it is right that the courts should be able to say so.

President of CILEx, Frances Edwards said: “Raising the no-difference threshold means an authority could escape legal challenge even when they’ve obviously behaved improperly. It will mean a judge second guessing the likelihood of a different outcome before hearing the issues in the case. That would increase the volume of evidence at the permission stage, adding to costs and delay.”

A key principle of the rule of law is that nobody, including the Government, is beyond legal sanction. Yet, if the Lords amendments were to be over-turned, the Bill would allow the Government to put itself, if not above the law, at least a little further from its grasp.

Writing to MPs, the legal bodies said: “Restricting judicial review would diminish your constituents’ ability to challenge public authority decision-making on things which matter to them.”