Criminal Justice and Courts Bill

Written evidence submitted by the Bar Council (CJC 07)

1. The Bar Council represents over 15,000 barristers in England and Wales. It promotes the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all; the highest standards of ethics, equality and diversity across the profession; and the development of business opportunities for barristers at home and abroad. This memorandum, which is submitted in advance of the Chairman of the Bar’s oral evidence to the Bill Committee on Tuesday 11 March, summarises the Bar Council’s key concerns about this measure. These focus on Part 4 of the Bill which deals with Judicial Review. If it would be helpful to the Committee, we shall submit further observations setting out the grounds of our concern in more detail.

2. A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties, often acting on behalf of the most vulnerable members of society. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. The Bar Council is the Approved Regulator for the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.

3. The Bar Council has the unique advantage of representing advocates appearing on all sides of judicial review proceedings – for claimants, for the public bodies whose decisions are under challenge, for interested parties whose position is affected by the outcome of the case, and for interveners. So we are able to bring a global perspective to the issues raised by this part of the Bill.

Judicial review and the Rule of Law

4. Judicial review plays an important role in our constitutional arrangements. The ability of courts to examine the legality of decision-making by the Executive and public authorities – and in particular to ensure that power is exercised within the scope of powers conferred by Parliament - is a cornerstone of democracy and the Rule of Law. From that standpoint we are concerned that the combined effect of the Bill and other Government proposals for changing the law of judicial review will inevitably raise the bar to challenging the Executive and other public authorities.

5. The Government’s proposals appear in the wake of another set of reforms of judicial review, some of which (especially the new rules on time limits) have potentially far-reaching, adverse impacts on access to justice. We believe it would make much more sense to await and assess the effects of those changes, having gauged their impact against stated policy aims, before implementing further reforms with their additional potential to stifle the effectiveness of judicial review. We are very concerned that there has been no time to undertake the necessary evidence-based appraisal of the recent round of changes. Judicial review is much too important to be placed at risk by legislating in haste.

6. Nor should the Government introduce legislation because it finds judicial review to be a nuisance. We believe that a number of the Government’s proposals about costs in judicial review proceedings will have the effect of inhibiting people from ventilating proper concerns in court. Measures designed to make a party (acting against the Government) bear a greater costs risk may inhibit legitimate challenges to public decisions. The Bill and other measures on which the Government has consulted have a constitutional – not just financial - effect. They affect the ability of ordinary citizens and of civil society to hold the executive to account.

7. In particular, it is very important that every party appearing before the courts is treated equally. Fairness, equality and the Rule of Law are essential hallmarks of our judicial system. They will be damaged if the Government and other public authorities become immune from penalties or provisions that may be imposed against those who challenge them. Costs measures that benefit only one party to proceedings raise the hurdles for individuals and organisations seeking to make public authorities accountable for their actions and their policies. We are also concerned that, if implemented in their present form, these proposals will increase the risk of bad practice in decision-making being created among public authorities if such bodies believe that opportunities open to others to challenge the legality of their decision-making have become more restricted. This will result in weaker policy development and less efficient decision-making. It will also reduce the opportunities for parties in these circumstances to reach settlements of their differences.

Provision of information about financial resources

8. Clause 51 will mean that an application for judicial review cannot proceed unless the applicant has provided information about financing the application as specified in rules of court. The terms of clause 51 mean that a judge will have no discretion to waive the requirement to provide specified information about sources of finance, irrespective of the urgency, seriousness or importance of the case to the applicant; and irrespective of whether it was the applicant’s fault that information had not been provided in accordance with any rules of court. An applicant who cannot satisfy a requirement to provide information will be shut out of a remedy from the court. That is wholly unsatisfactory, as it may immunise the Government from challenge. We urge the Government, at the very least, to introduce an element of discretion into primary legislation.

9. We also have grave concerns about the extent and intrusive nature of clauses 51 and 52 as currently drafted. Clause 51(2) and (4) raise the prospect that an applicant for judicial review will be compelled to give information not only about sources of finance, but also about likely sources of finance. Clause 52(2)(b) appears to enable rules to be made to "supplement" the required financial information in a manner that is not constrained – or even spelt out - in the Bill. Clause 52(3) will enable the courts to order a person to pay the costs of judicial review proceedings not because they are a party to proceedings but merely because they are "likely or able to do so". It is entirely opaque as to how these sweeping provisions will operate in relation to legally aided claimants. But it is also of serious concern that the provisions open the way to scrutiny of a claimant’s private life, and the private life of his or her family and/or other potential sources of financial support. The Bill does not seem to be concerned with constraints on the intrusive use of statutory powers. It lays down no safeguards against disproportionate interference with a party’s or a non-party’s private life. It seeks to achieve a policy aim (openness about funding litigation) without proper checks and balances.

Interveners and costs

10. Clause 53(4), when read together with 53(5), places a mandatory duty on the court to make an order for costs against an intervener where a party to the litigation has incurred costs as a result of the intervention, unless there are exceptional circumstances. The position that the Bar Council took in its consultation response was that there was no need to make any change to the present position, and some real disadvantage because of the likelihood that NGOs would not be willing to run the costs risk that the proposed regime would expose them to; and would not intervene at all. This result, if it came about, would be contrary to the public interest because of the value the courts have placed on the assistance of interveners. The present position is that interventions require permission, and are always under the tight control of the court. There is undoubted jurisdiction to make an award of costs against an intervener, particularly if it behaves unreasonably, and to refuse permission to introduce particular evidence if a party to the litigation is going to have to incur expense in rebutting it. The problem with the present proposal is its chilling effect on NGOs and charities contemplating intervention. These bodies may be very nervous about exposure to cost risks, and the creation of a presumption that they will indeed have to bear the costs of any additional time considering their intervention may well deter them from intervening at all. Further, there is no evidence of a problem that needs to be addressed. If one were to emerge, the existing powers of the court are more than adequate to enable them to be addressed.

Equality of representation

11. The provisions of the Bill cannot be assessed in isolation. The Government’s response to its recent consultation exercise shows that it intends radically to overhaul the principles for paying legal aid lawyers who bring cases against it. We believe that the Committee should be alert to this proposal, as being part of a package of measures which will in our view have an impact on access to justice.

12. The Bar Council takes no side as between claimants and defendants, or their respective lawyers. Our concern is with access to justice and with promotion of high standards of conduct by advocates regardless of which party they find themselves representing. Anything which makes it unviable for practitioners to bring claims for judicial review or which discourages them from doing so will likely impede access to justice and the ability to take action to prevent wrongs by public bodies. We have no doubt that the proposals will have such an inhibiting effect which will not be in the public interest.

13. The Government proposes to bring forward measures so that legal aid lawyers taking cases against the Government will not be paid in cases where permission to bring proceedings is not granted, save where the Legal Aid Agency exercises its discretion. The Bar Council disagrees strongly with the proposal to deny payment to legal aid lawyers in cases where permission to apply for judicial review is refused. We will end up in an undesirable situation whereby the advocates defending a claim at permission stage will be paid, but those bringing the claim may not.

14. Judicial review is one of the main ways in which citizens may vindicate their rights and hold the Executive to account. Threatening the viability of carrying out judicial review work will therefore have serious consequences for access to justice and the ability of individuals to challenge the actions and/or decisions of public bodies. Those decisions often have significant and serious consequences for the everyday lives of people in Britain.

15. It is important to recall why, in contrast with ordinary civil litigation, there is a permission stage in judicial review proceedings in the first place. Its purpose is precisely to provide a filter to protect public bodies against unarguable claims. That represents a satisfactory balance between the public interest in access to justice and the public interest in administrative certainty. There is simply no evidence that unarguable claims are routinely permitted to proceed beyond the permission stage. In other words the existence of the filter amply serves its intended purpose. A claim is either arguable or it is not, and the permission stage is the appropriate mechanism for determining that question. It is wrong in principle to impose additional, specific disincentives to accessing the permission stage itself. That does not "rebalance" judicial review; rather, it risks fatally undermining it.

Further issues

16. The Bar Council also has concerns about Clause 58, which appears to provide the Government broad consequential amending powers, which are much too widely drafted.

17. This Bill also provides an opportunity to provide for the possibility of appeal from the Administrative Court to the Court of Appeal in civil appeals from the Magistrates or Crown Court; an anomaly which ought now to be rectified.

18. The position of the Bar Council to date can be seen in the submission to the Joint Committee on Human Rights on the proposals. [1]

March 2014


[1] The Bar Council responded to a call for evidence on the implications for access to justice of the Government's proposed legal aid reforms from the Joint Committee on Human Rights. The Bar Council’s response is available at: http://www.barcouncil.org.uk/media/229037/2013.09.27_jchr_call_for_evidence_-_bar_council_response_final.pdf

[1]

Prepared 12th March 2014