Criminal Justice and Courts Bill

Written evidence submitted by Nick Armstrong, Matrix Chambers (CJC 01)

General point

The proposed changes to judicial review will privatise public law. Public law, and judicial review, is different to private law. Private law is about resolving disputes between individuals. A court looks back, i.e. at something that has happened in the past, and awards a remedy if that is required. Judicial review, by contrast, looks forward. That is, a judicial review will only succeed if there remains an outstanding issue of importance. That may be a policy, practice or decision that is unlawful and which needs changing for the future. A disabled person may be entitled to services, a school admissions panel may be required to look again at a case, a piece of government guidance may get the law wrong.

This "forward looking" aspect of judicial review is important for a number of reasons:

1. Judicial reviews may be perfectly valid at the outset, but become academic because a situation changes, perhaps through the action of a third party (the UKBA granting leave to remain, for example, so an individual need no longer look to a local authority for services). The need for the judicial review therefore falls away, but a claimant was right to have brought it. Should the work preparing it not be funded, even though permission is not granted?

2. Judicial reviews are not just concerned with the interests of the parties, but also non-parties who will also be subject to the policy or practice. Everyone has an interest in ensuring good quality decision-making. Everyone has an interest in ensuring that government action is lawful. Everyone has an interest in ensuring that officials do what Parliament intended them to do (hence the point that the organisation Justice is making: ministers often tell Parliament that if there is a problem with the detail in a bill, "there is always judicial review"). This remains true even when the parties are no longer interested in the outcome, and so the matter has become academic so far as they are concerned. This goes to the "materiality" point in Clause 50 of the Bill. It also goes to the importance of interveners, who are there when the court recognises that there is an interest beyond that of the parties, and where it needs to get its wider "forward-looking" function right (Clause 53 of the Bill).

3. For these and other reasons, private law concepts, including costs-incentives, do not translate well into judicial review. Judicial reviews are not "binary". They are not "win or lose" for an individual. There are cases that individuals will not support, and which solicitors’ firms cannot risk assess, because they are affected by interests beyond the individuals immediately involved. The private market will not therefore step in to fund judicial review, or all judicial reviews. Privatising public law will therefore mean this crucial constitutional function will be seriously undermined. It may be lost altogether, and in respect of the most important, far-reaching cases.

Legal aid

A further general point is that the current reforms, contained in Part 4 of the Bill, are part of a much wider raft of measures including, in particular, the Transforming Legal Aid changes, the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (which has not yet been in force a year and whose effects have not yet worked through), and the judicial review changes already introduced. I have been involved in civil justice reform for more than 20 years. Lawyers usually oppose change. Things are not usually as bad as they first appear. But after a year of meetings on the legal aid changes in particular, I think I can safely say I have never seen anything like this before. There is usually someone who can be found to say "I think this can be found to work". There is no such person this time. The meetings I attend are, frankly, and without risk of overstatement, full of despair. Any one of the current proposals would present problems. Take as a whole, the unanimous view is that the reforms may well derail the essential constitutional protection of judicial review altogether. Few good solicitors will be able to continue. Few judicial reviews will then be brought. Even fewer interventions will be possible. Unlawful decisions and practices will go unchallenged. Make no mistake: these reforms, which the Justice Secretary has said, more than once, to be "ideological", go much further than anything that has gone before.

It is of note that the particular proposal for restricting legal aid for judicial review, which is that lawyers will not be paid unless permission is granted, is not contained in this Bill. They will be, it is said, in secondary legislation. This is despite the fact that of all the current proposals that is the most dangerous. A top quality firm I spoke to in preparing this paper told me that they had assessed all the cases they had run during 2012. 25% would not now be paid. This was not because they had been refused permission, but because other things had changed as a case progressed. That firm cannot take a pay cut of 25%; it cannot survive it. This would be the effect of the judicial review proposal alone. The 25% figure takes no account of the effect of other legal aid reforms, including the residence test that is due to be introduced shortly.

The affected cases

One of the cases run by the firm mentioned above, and which the firm says it could now bring, concerned an action by 12 homeless teenagers who alleged that a local authority procurement process had been unlawful. The authority agreed, and restarted the process, but on condition that there be no order as to costs. The solicitors had to accept that "deal", because it was in their clients’ best interests. No doubt it would now be said that the firm could still do the work, and rely on Legal Aid Agency ("LAA") discretion to pay them in the circumstances. But the firm cannot rely on that. The ambit of LAA discretion is uncertain at the best of time, and particularly so when with this new proposal. The firm says that simply could not prepare 12 separate cases, however meritorious, at risk of not being paid. So these important cases would not be brought.

That same firm has also brought about changes to the law so that people are entitled to legal representation in specific, highly charged, circumstances (more than one case of this kind has been brought in the past 12 months, concerning a variety of situations). These are also important cases that could not now be brought: the costs risks would be too great.

This is just one firm, and there are many examples of cases like these that could not now be brought because, for example, the start-up costs would be too great to take the risk of non payment. Social welfare cases such as those challenging the lawfulness of the bedroom tax is an example. Not all will agree with the outcome of that case, but all should agree that it is one of the most difficult issues of recent times, and so worthy of a court’s attention. The case concerning the lawfulness of the policy of refusing the Gurkhas the right to settle in the UK is another. In the case of Begum v Governing Body of Denbigh School, schools were told that provided they properly assessed their community needs, taking into account relevant matters, then their school uniform policies would achieve great things and be effectively immune from challenge.

It would now be very difficult to bring all of these cases. To repeat, public law is different, and one cannot rely on the private legal market to step in to cover cases that bring a benefit to society as a whole, particularly where that wider public aspect means that the costs rules and dynamics of this kind of litigation are very different.

One last example: the case of YL v Birmingham, which was concerned with whether private care providers were public authorities and so caught by the Human Rights Act 1998, the government was so concerned about the potential implications that it invited, and funded, interventions from the care sector. Should only interventions in which the government is interested be permitted?

The Bill

Against that general background, some brief points on the Bill itself:

Clause 50: Likelihood of substantially different outcome for applicant

The key points here are:

1. Whether the applicant will achieve a different outcome or not, everyone has an interest in correcting illegality.

2. It is impermissible – it is not their role – for courts to decide what a public authority, now properly directed as to the law, would decide. That is for the public authority.

3. Even if a remedy is denied to the individual, but a court has, in its reasoning, cast doubt on the lawfulness of a decision or practice, then denying a remedy will simply mean that another litigant will have to bring the same case, but where the outcome will impact on him or her. This will therefore produce additional litigation.

4. What happens with cases such as those seeking a declaration of incompatibility (under s.4 Human Rights Act 1998)? These are obviously hugely important cases, dealing the lawfulness of primary legislation. But how can a court determine the effect, for an individual, when that depends on what Parliament decides to do in order to rectify (or not) an incompatibility?

Clauses 51 and 52: Information about financial resources

This will prevent cases, not now eligible for legal aid, which are group-funded. Will a daughter now contribute £5,000 to a case concerning the care requirements of her mother, when there is a risk that may make her liable for the defendant’s costs should the case fail? Will a group consider donating £1,000 per person to a judicial review designed to check whether the Environment Agency is pursuing lawful policies in Somerset if similar risks arise? The Justice Secretary says he wants to stop interest groups hiding behind an individual, but does Parliament really want to stop these cases, in which many people have such an interest that they are prepared to privately part-fund? Those are by definition cases that matter to people.

Clause 53: Interveners

This clause threatens to stop interventions completely, or at least, those interventions that are not on behalf of powerful financial interests, or funded by the government (see the YL v Birmingham example above). Small charities cannot afford to pay the costs of defendants, and the clause is in mandatory terms (Clause 53(4): "the court must order…"). Note also that this seems to apply, i.e. an intervener must pay, even if the relevant party has lost the case (perhaps because the intervener’s submissions were preferred. This therefore threatens to introduce a concept wholly alien to English common law: "winner pays").

Clauses 54 and 55: Capping of costs

The biggest problem here is Clause 54(3), which prevents costs-capping orders being imposed in respect of pre-permission costs. Defendants often incur enormous costs at the pre-permission stage. Clause 54(3) will leave recognised (because they will have satisfied the rest of the test, including Clause 54(7)) public interest litigants exposed to those costs. The result will be, I and others think, that charities and others involved in this kind of litigation simply won’t bother applying. The risks will be too great. This is yet another very serious chilling effect.

The other significant problem here is the power to introduce by regulation further matters to which the court must have regard: see Clause 54(9). That is enormously powerful, and risks being mis-used.

Conclusion

This paper has had to be prepared within a very tight time limit, and may be expanded on orally. It may however be worth concluding by reference to the speech given by Lord Neuberger last month ("The British and Europe"), and where he touched on the fragility of the rule of law. People in this country, he suggested, were not as conscious of that fragility as perhaps others such as those in mainland Europe who had experienced invasion, revolution and other turbulence.

There are reasons why senior judges are currently expressing themselves in such terms. The current proposals are extremely dangerous. Difficult to understand, perhaps. Also technical, and concerning superficially boring matters of legal procedure and costs. But no less dangerous for that.

March 2014

Prepared 12th March 2014