Criminal Justice and Courts Bill

Supplementary Written evidence submitted by Liberty

(CJC 23)

Liberty’s Committee Stage briefing on Part 4 of the Criminal Justice and Courts Bill in the House of Commons

About Liberty

Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

Liberty Policy

Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research.

Liberty’s policy papers are available at

http://www.liberty-human-rights.org.uk/policy/

Introduction

The Criminal Justice and Courts Bill was introduced in the House of Commons on 5 February 2014. The Bill comes in five parts. Part 1 is entitled criminal justice and makes provision for sentencing, largely in relation to offences connected with terrorism. It also includes proposals to limit the use of cautions for serious offences or repeat offences except in exceptional circumstances and with permission of the Director of Public Prosecutions. Part 2 of the Bill sets out proposals in relation to young offenders, which include the creation of so-called ‘secure colleges’ as an additional custody option for young offenders. Part 3 contains wide-ranging changes to procedures in courts and tribunals. The part includes extremely worrying new powers for trial by a single magistrate on the papers for less serious offences unless the defendant serves a written notice specifying he or she wants to plead not guilty or wants a trial in open court. Part 3 would also introduce new charges to be levied towards criminal court costs to be paid by convicted adult offenders, would increase the upper age limit for jury duty to 75, and create a new offence of juror research. Part 4 focuses on changes to judicial review (JR) and Part 5 makes consequential provision.

This briefing paper focuses on the proposals contained in Part 4 of the Bill. The focus here on Part 4 reflects the gravity of Liberty’s concerns about the proposals contained in that part and their position as part of a concerted attack on state accountability and equality before the law. We have prepared a shorter briefing on other aspects of the Bill.

Liberty is extremely concerned that the proposals contained in Part 4 of the Bill constitute a significant threat to the constitutional role of the courts in ensuring that the Executive acts within the law. In the absence of proper and sustainable justifications for changing JR, these proposals appear to be an attempt by the already exceptionally powerful executive to insulate itself from proper challenge, largely, although not exclusively, by erecting financial barriers to make it harder for individuals to pursue a claim. Provisions in the Bill would also permit future Governments to bypass Parliament if it wished to make changes to the content of the Bill. Part 4 would therefore create a system in which the Executive is increasingly free to act without regard for Parliament or the law. In a democracy predicated on the Rule of Law, this is surely unacceptable.

We encourage Members of Parliament to delete clauses 50, 51, and 53 from the Bill and to reform clauses 54 and 55. In the alternative we have set out in this briefing a series of suggested amendments which we hope would reduce the grave negative consequences of Part 4 by:

· Retaining judicial discretion as to whether or not to hear a ‘no difference’ argument (amendments 4 and 7)

· Retaining judicial discretion as to whether or not to grant permission or relief in JRs where a ‘no difference’ argument has been made (amendments 2, 6, and 9)

· Raising the threshold to make a ‘no difference’ argument from ‘highly likely’ to ‘inevitable’ (amendments 3,5 and 8)

· Retaining judicial discretion as to whether to require parties to provide financial information to the court or tribunal and limiting the information provided to that of the extent of resources (amendments 11, 12 and 13)

· Removing the requirement that organisations which bring judicial reviews have to provide financial information about their members (amendments 14 and 16)

· Removing the obligation on the court to consider all the financial information provided under clause 51 when making costs orders (amendments 17 and 18)

· Requiring the Court to award costs against interveners only where it is in the interests of justice to do so (amendments 20 and 21)

· Allowing the Court to award a Costs Capping Order to an applicant or intervener at an early stage of proceedings (amendments 22 and 23)

· Preserving the role of Parliament in making any future changes to the provisions laid out in the Bill and in making changes to the future funding of JR. (amendments 24 and 26).

Background

Judicial Review

JRs operate in two phases. The applicant must first receive permission from the court to run a full claim. Permission can be received by a written or oral process in front of the court. Only once permission has been received can the applicant proceed to a full substantive hearing of the claim.

JR allows individuals, businesses and organisations to challenge the lawfulness of decisions or actions of the Executive, including Ministers, local authorities and other bodies exercising public functions. In a JR process, the court does not make an assessment of the merits of the execution of the Executive’s power nor can it replace the decision of the relevant executive body with its own. Rather, it tests whether a decision was legal, rational and procedurally correct. If the decision did not meet these criteria, the court can order relief but cannot mandate the course of action to be taken by the public body. This narrow and supervisory form of oversight of the legality of executive decision-making is a limited but vital part of our delicate system of checks and balances which protect individuals from the arbitrary exercise of power by the state and which must exist for democracy to flourish. JR also occupies a central place within our framework for the protection of civil liberties, providing an essential means of enforcing human rights standards.

JR constitutes an effective and already streamlined mechanism for holding the state to account for the legality of its use of power. According to Government figures, in 2012 there were 12,600 JRs lodged, 7,500 of which were considered at the permission stage. Of these, 1,400 received permission to proceed to a full hearing. [1] The Government takes these figures as evidence that too many JRs are being pursued, and that too many JRs are weak claims. But this reveals a fundamental misunderstanding of the JR process and the factors that sit behind these statistics. First, when faced with a JR claim many public authorities which have been intransigent up to that point will concede that they have made a mistake, accounting for a significant number of withdrawals of claims even before permission stage. This self-correcting role has a widely acknowledged, healthy and economical effect on the entire justice system, facilitating the resolution of problems without the direct involvement of the court. Indeed, cases which attract an early settlement in this manner are likely to be amongst the strongest legal claims. Second, the courts themselves clearly have an effective process for filtering the cases that do reach permission stage. There are many safeguards to control the cases that proceed beyond this point. These include fulfilling the ‘sufficient interest’ test; court discretion to grant permission in full or only in respect of limited or certain grounds; JR as a tool of last resort after other avenues of redress (such as internal complaints, appeals etc.) have been exhausted; short limitation period; and the requirement to complete pre-action protocols that encourage early settlement. However, it is important that cases that do not receive permission are not automatically viewed as malicious or an undeserving abuse of process. JR is a highly technical and legal process and many of the cases inevitably concern the disputed borders of the law. It is entirely proper both that applicants should be given the opportunity to raise these cases and also that the courts have the opportunity to decline to hear them. Third, viewed as a proportion of the enormous and frankly incalculable number decisions made by the state and its agencies at a local and national level, the number of JR claims even lodged is tiny, or "infinitesimal". [2] The impact of the JR process on the exercise of executive powers is therefore limited.

Similarly, overall statistics on the number of total adjudicated decisions that were made in favour of the claimant at final hearing demonstrate that the system isn’t generally being abused – with the Government’s consultation paper explaining that "for cases lodged in 2011, around 40% of adjudicated decisions at the final hearings were made in favour of the claimant". [3]

Wider context of reform

The proposals contained in Part 4 cannot be viewed in isolation. Rather, they form part of a wider programme of reform that has reduced the accessibility of the justice system. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 significantly limited the availability of legal aid by both reducing the eligibility threshold and removing entire areas of law from the scope of public funding. At that time no changes were made to the funding of JR. The consultation paper set out that:

"In our view, proceedings where the litigant is seeking to hold the state to

account by judicial review are important, because these cases are the means by

which individual citizens can seek to check the exercise of executive power by

appeal to the judiciary. These proceedings therefore represent a crucial way of

ensuring that state power is exercised responsibly." [4]

However in 2013 the Government also consulted on and confirmed a further round of legal aid reform, this time including JR. [5] Most worrying is the proposal for a ‘residence test’, which would require anyone who wishes to receive publicly funded legal advice – including for JR – to be able to demonstrate at least twelve months of residence in the UK. [6] This approach would completely undermine the notion that legal protection is available equally to all, and would make it increasingly difficult for vulnerable individuals to hold the state to account.

The Coalition Government then consulted on JR at the end of 2012 [7] and subsequently shortened the time limit for bringing a JR from three months to six weeks in certain planning cases and to thirty days in certain procurement cases; removed the right to oral renewal (of an application for permission) where a case is assessed as without merit on the papers; and introduced a fee for an oral renewal hearing where permission has already been refused by a judge on the papers.

Consultation on JR reform

The Ministry of Justice issued an additional JR consultation paper, entitled Judicial Review: proposals for further reform, in September 2013. The changes in Part 4 of this Bill were tested in this paper and a number of other worrying proposals from that consultation paper will be taken forward outside of this Bill. These include proposals that costs incurred in the pre-permission stage by legal advisers funded under the legal aid scheme will only be recoverable if permission is granted or, if permission is denied, at the discretion of the Legal Aid Agency. [8] This would require legal aid practitioners to accept a potentially crippling financial risk in order to pursue a claim. The likely impact of this proposal would be to significantly reduce the prospects of a legally aided individual from finding a practitioner to take on their case.

The changes made in this Parliament to the justice system have been undeniably significant. Viewed cumulatively, their impact is to make it harder for individuals without the financial resources to spend on legal fees to bring cases. This effect is especially worrying when it insulates the state from challenge. It is an essential part of the Rule of Law that the rules of the land apply equally to all – including the state itself. And yet to add to these changes further barriers to justice smacks of a Government using its power to escape legal accountability and to deny the protection of the law to those the Government is meant to serve.

The case for reform?

In both the consultation on proposals for further reform and in its response, published in February 2014 the Government failed to make the case for reform of JR. [9] Both documents claimed that there has been a massive and out of control growth in the use of JR, stating that in the period from 1998 to 2012, JR applications grew from 4,500 per year to 12,400. [10] However, as the consultation paper itself explains, "the main driver of growth was in immigration and asylum applications, which more than doubled between 2007 and 2012 and made up 76% of the total applications in 2012". [11] Therefore the complained of "massive expansion" of JRs was almost exclusively in the area of immigration and asylum and applications for JR other than in immigration and asylum cases have remained static. Responsibility for hearing immigration and asylum JRs has already been moved from the Administrative Court to the tribunals system, and it is anticipated that this will reduce two thirds of the volume of work of the Administrative Court. The problem set out in the consultation paper was somewhat misleadingly formulated as a reason for reform and in fact has already been addressed. The consultation response added that in the first nine months of 2013 there were 12,800 applications for JR lodged. [12] Not only does this slight increase hardly justify fears of a massive expansion, but it also says nothing about the area of law of those claims and how many of those claims even reached permission stage, let alone how many led to a full hearing. Also, there is no indication from the Government as to any change in the volume of decisions made by the executive over recent years. It is therefore entirely possible that as a proportion of the decisions made by the state, the number of JRs has actually decreased.

The Government also claims that unsuccessful JRs have a detrimental effect on economic growth. It is indeed the case that a properly functioning justice system will lead to the temporary suspension of activities while lawfulness is examined. That’s the nature of justice. The Government’s argument in this respect is similar to saying that the power of arrest needs to be curtailed because people are sometimes arrested, charged or prosecuted and not convicted. This is not evidence that the justice system is not working, but rather a necessary consequence of the fact that in a healthy and functioning legal system, not all legal action is going to succeed. Indeed if all JRs were successful the Government would no doubt be arguing that this was evidence of the need for even greater reform.

Importantly, there is no statistical analysis which demonstrates any negative link between JR and economic growth. This is unsurprising given the small number of JRs that are brought each year and the even smaller number that relate to infrastructure projects. Very little JR litigation is economically significant, relating as it does to housing, education, community care, prisons, police, mental health, and local authority services that involve vulnerable and disadvantaged claimants. According to statistics published in the journal Public Law, in the years 2000-2005, 85% of local authorities only attracted one or two JR challenges per year, with over half of those concerning housing issues. [13]

In the consultation document the Government also made claims that campaigning organisations were abusing the JR system. [14] However that same paper explained that on average campaigners bring only 50 JRs per year [15] – amounting to 0.4% of the total of JRs – and that these JRs tend to be relatively successful when compared to other JRs. [16] This suggests in fact that the use by NGOs and charities of the JR process is both limited and considered. Liberty is pleased to note that when confronted with its own evidence the Government dropped plans to ban third parties from bringing JR claims. But it is deeply worrying that despite this evidence to the contrary, the Government continued to claim that JR is being ‘misused’ [17] and has instead used the Bill to attempt to price out third parties from participating in JRs via the intervention process.

The Lord Chancellor also claimed in the Daily Mail that JR was a tool of the left-wing. [18] This reveals a fundamental misunderstanding of the JR process – which is to allow those who meet the legal requirements for bringing a claim to do so, regardless of financial means, political colour or power, or other extraneous factors. And once again, evidence belies the claim. Liberty – for example – is a non-party, cross-party organisation that will occasionally seek to participate in JRs. We do this not because of any party political motivations, but because it is an appropriate way to test whether the Executive – regardless of its political persuasion has behaved in accordance with law. And there are certainly plenty of examples of JRs in recent times brought by those not known for their left-wing leanings including the Countryside Alliance, the Daily Mail, the Daily Telegraph, sometime UKIP treasurer Stuart Wheeler, Conservative Peer Lord Rees Mogg and Conservative-run Councils. These applications have concerned decisions on matters diverse as ratification of the Lisbon Treaty, the high-speed rail link, fox-hunting and anonymity for journalists giving evidence to an inquiry into press conduct and ethics.

The Government has also claimed that it is introducing financial measures so that "those who bring weak claims face a more appropriate measure of financial risk". [19] It is extremely inappropriate for the Government to seek to use financial barriers to prevent individuals from pursuing legal claims. Such an approach will not only have a disproportionate impact on those with limited financial means, but financial barriers will also inevitably affect not only those with weak claims but those with strong claims. Not only has the Government failed to make its case as to why reform is needed, but the changes it has sought to introduce constitute an extremely blunt tool. The best mechanism for weeding out weak or unmeritorious cases is in fact the court itself, which in the case of JR has a large discretion to refuse to hear a claim. Instead of relying on this proven and trusted tool of judges, the provisions set out by the Government in Part 4 of the Bill will provide protection for executive actors who do not follow the law and will reduce justice across the board.

As a human rights organisation, Liberty undertakes policy, campaigning and legal work. In 2013, in total we represented clients in over 40 cases. We brought 5 JRs and we made 3 interventions. In 2012 we acted in over 35 cases, brought 4 JRs and made 8 interventions. As interveners, we have never had costs awarded against us, and we have once benefitted from a costs capping order. It is undeniable that a small but important part of our work would be made harder by the changes in this Bill. But the reason we bring and intervene in JRs is also the reason why we have prepared this briefing: we believe that it is important that the executive is accountable for its use of power. As part of our constitutional settlement, it is imperative that the courts can check whether the executive is correctly applying the laws set out by Parliament. We are concerned that the changes in this Bill will erode the actual and perceived ability of the court to do this. We strongly encourage Members of Parliament to protect the UK’s delicate balance of powers and to keep the executive in check by amending this Bill.

Clause 50 – ‘no difference’

Amendment 1

Page 51, Line 35, delete clause 50

Effect

This amendment would remove clause 50 from the Bill.

OR -

Amendment 2

Page 52, Line 3, leave out ‘must’ and insert ‘may’

Effect

This amendment would allow the high court judge in a JR hearing to retain discretion as to whether or not to grant relief in ‘no difference’ cases rather than require him or her to refuse relief.

Amendment 3

Page 52, Line 7, leave out ‘highly likely’ and insert ‘inevitable’

Effect

This amendment would raise the threshold at which a ‘no difference’ argument can be made in a JR from when it is ‘highly likely’ that the conduct complained of would have made ‘no difference’ to the outcome to when it is ‘inevitable’.

Amendment 4

Page 52, Line 15, leave out ‘and’

Page 53, Line 16, leave out subsection (b)

Effect

This amendment would allow the judge in a JR permission hearing to retain discretion as to whether or not to consider a ‘no difference’ argument rather than requiring him or her to hear the argument if raised by the defendant.

Amendment 5

Page 52, Line 18, leave out ‘highly likely’ and insert ‘inevitable’

Effect

This amendment would raise the threshold at which a ‘no difference’ argument can be made in a JR permission hearing from when it is ‘highly likely’ that the conduct behaved of would have made ‘no difference’ to the outcome to when it is ‘inevitable’.

Amendment 6

Page 52, line 19, leave out ‘must’ and insert ‘may'

Effect

This amendment would allow the court judge in a JR hearing to retain discretion as to whether or not to grant permission in ‘no difference’ cases rather than require him or her to refuse permission.

Amendment 7

Page 52, Line 38, leave out ‘and’

Page 53, Line 39, leave out subsection (b)

Effect

This amendment would allow a tribunal judge to retain discretion as to whether or not to hear a ‘no difference’ argument when considering whether to grant permission for JR rather than requiring him or her to do so if raised by the defendant.

Amendment 8

Page 52, Line 44, leave out ‘highly likely’ and insert ‘inevitable’

Effect

This amendment would raise the threshold at which a tribunal judge could consider a ‘no difference’ argument when considering whether to grant permission from when it is ‘highly likely’ that the conduct complained of would have made no difference to the outcome to ‘inevitable’.

Amendment 9

Page 52, Line 45, leave out ‘must’ and insert ‘may’

Effect

This amendment would allow a tribunal judge in a JR hearing to retain discretion as to whether or not to grant relief when it appears that the conduct complained of would not have affected the outcome of the decision rather than require him or her to refuse relief.

Briefing

Under clause 50, a court or tribunal would be required by law to refuse to grant relief if it appears to the judge highly likely that the outcome for the applicant would not have been substantially different if the procedural incorrectness complained of had not occurred. Clause 50 would also require the judge to consider ‘no difference’ arguments if raised by the defendant at the permission and substantive hearing stages. The clause makes similar provision for JRs heard in tribunals rather than the High Court.

At the moment, the courts can already apply a ‘no difference’ principle in much more limited circumstances. Under the current approach, when a court is satisfied that the outcome of a decision would ‘inevitably’ have been the same if the defect complained of had not occurred, it can refuse to grant the remedy sought. These arguments can, in principle, be made at any stage but tend to be heard at the substantive JR hearing.

A JR can be brought on the grounds that the decision made by a public body was procedurally incorrect. Historically, a procedurally incorrect decision was known as one which breached the rules of natural justice. The two elements of procedural correctness are the rule against bias and the duty to act fairly. Often, JRs on this ground will concern the issue of whether consultation took place and whether those affected by a decision were given the chance to make their case during the decision-making process.

This ground of review sums up the essence of JR and why it matters. Concerned not with the outcome or the merits of the decision, it reflects the fundamental importance of lawful, transparent and fair decision making by those exercising public powers. The repercussions of arbitrary of biased decision making are felt widely, undermining confidence in public bodies and driving down standards. Even where individuals are not satisfied with the outcome of a decision-making process, the fact that they have been given a fair hearing often serves to satisfy their sense of justice and promotes trust in state institutions and democratic processes.

Technicalities?

It has been remarked by the Lord Chancellor that clause 50 relates only to "technicalities". [20] In a sense, that is true, but not in the seemingly derogatory way in which it was intended. It is no insult to the process to say it requires decisions to be made in accordance with law and guidance and in a rational and even-handed fashion. Do we really want to suggest that the process by which executive decisions are made is a matter of little consequence? If a poorly performing public authority randomly stumbles on the right answer without process or reason, does the Lord Chancellor really believe there is no cause for judicial oversight? Such an approach would have extremely serious implications for administrative decision-making affecting all areas of our lives. If ‘technical’ breaches of the rules of natural justice are permissible, why not have a defence of ‘technical’ illegality to criminal offences? This argument also ignores the fact that many significant and important JRs are brought on the grounds of procedural impropriety. The internationally famous Pinochet No 2 [21] case was brought on the grounds of bias. The less famous but equally important case – Coughlan [22] – which concerned the closure of a care home despite the promise made to severely ill and disabled individuals in long term care that the home would be theirs for life – also concerned procedural impropriety. These are cases that matter.

Alter the nature of JR

Liberty is concerned that by requiring judges to refuse to grant relief where it would be ‘highly likely’ rather than ‘inevitable’ that the outcome would have been substantially different necessarily alters the nature of JR. It forces the judiciary to move away from pronouncing on whether the decision was legally correct and properly taken, and instead asks them to place themselves in the position of the decision maker. It fundamentally undermines the purpose of JR, which is to test not for outcome but for compliance with law and process.

At the Second Reading of the Bill, some concern was expressed that JR has moved beyond its procedural review function. Mr Nick Herbert MP stated that "…decisions by the courts are increasingly substituting for decisions that should be made by Ministers." [23] And Mr Robert Neill MP claimed that many "… believe that rather than being a process of procedural review – an administration of the propriety of decision making – judicial review should be used as re-run of the merits. That is not what it was ever intended to be." [24]

There was no evidence adduced to support the claim that courts exceed or confuse their jurisdiction in JR processes, but the changes proposed at clause 50 would certainly make these concerns more rather than less likely to materialise. The Lord Chancellor himself stated that clause 50 would mean that "cases…cannot simply be brought on a technicality relating to the process". Requiring judges to consider the merits of a decision rather than the so-called ‘technicalities’ of the process is constitutionally inappropriate.

In a democracy under the Rule of Law, it is imperative that public bodies are required to behave in accordance with the law. JR is a mechanism for testing legality in a particular case but also helps to create an environment in which public bodies know that consequences will follow if they act with disregard for the law. Completely removing the discretion for judges to grant relief in cases where a ‘no difference’ argument has been made out – regardless of the nature of the conduct of the defendant – by requiring the court to refuse any relief, removes a key incentive for public bodies to exercise their powers properly.

Circumvent accountability

Giving defendants the opportunity to raise a ‘no difference’ argument at the permission stage of JR rather than at the full hearing gives the decision-maker the opportunity to circumvent a full hearing about the way in which they made a decision, reducing the opportunity for the substantive claim to be fully examined. This will even be in cases where it is possible that, had the public authority used its powers appropriately, the outcome for the applicant would have been different.

The judiciary was concerned that this approach would lead to lengthy dress rehearsals of the main arguments at the permission stage, in fact reducing the efficiency of the JR process. [25] However, in its response to the consultation the Government dismissed these concerns by stating that the risk of dress rehearsal is ‘manageable’ and that JRs in this context are not a good use of time or money. [26] It is odd that the Government is so willing to rely on the discretion and skill of the court to negate this risk but elsewhere seek to reduce judicial discretion to an absolute minimum.

Conclusion

Liberty is seriously concerned about the message clause 50 sends to decision-makers. JR is a safeguard against poor and unfair decision making, which is itself a serious problem. Public bodies and their agents should not be accorded greater freedom to adopt a cavalier approach to their legal duties. Removing the clause from the Bill would not mean that ‘no difference’ arguments cannot be made, but would mean that public bodies would operate in the shadow of the courts, knowing that if they do not follow the rules of natural justice then they will be liable to account for it.

Clause 51 – provision of financial information

Clause 51 would require an applicant seeking permission to apply for JR to provide information about the source, nature and extent of their financial resources. The exact details of the information to be provided will be contained in regulations. Clause 52 would require the court to then take this information into account when determining the payment of costs.

Amendment 10

Page 53, Line 7, delete clause 51

Effect

This amendment would delete the clause on provision of financial information about financial resources from the Bill.

OR-

Amendment 11

Page 53, Line 16, insert "or the Court has ordered that such prescribed information need not be provided in whole or in part."

Effect

This amendment would allow the judge to retain discretion not to require the parties to provide all or any of the financial information set out in the clause prior to commencing a JR process.

Amendment 12

Page 53, Line 20, delete "source, nature and"

Effect

This amendment would remove the requirement for applicants to provide information about the source and nature of their financial resources. The applicant would still be required to provide information about the extent of their resources.

Amendment 13

Page 53, Line 21, leave out "likely to be available"

Effect

This amendment would remove the requirement that the applicant has to supply the court with information about financial resources likely to be (as opposed to actually) available to them prior to commencing a JR.

Amendment 14

Page 53, Line 22, leave out "and"

Page 53, Line 23, leave out subsection (b)

Effect

This would remove the requirement that if the applicant is a body corporate that is unable to demonstrate that it is likely to have financial resources to meet liabilities arising from the JR, it has to then provide information to the court about its members and their ability to provide financial support.

Amendment 15

Page 53, Line 43, leave out "likely to be available"

Effect

This amendment would remove the requirement that the applicant has to supply the tribunal with information about financial resources likely to be (as opposed to actually) available to them prior to commencing a JR.

Amendment 16

Page 53, Line 44, leave out "and"

Page 53, Line 45, leave out subsection (b)

Effect

This would remove the requirement that, if the applicant is a body corporate that is unable to demonstrate that it is likely to have financial resources to meet liabilities arising from the JR, it has to then provide information to the tribunal about its members and their ability to provide financial support.

Briefing

We understand the need for the Court to be in a position to make an assessment of the capacity of an applicant to pay costs. However we do not understand why the ‘source’ and ‘nature’ of these resources are relevant to this assessment. In fact, it is not entirely clear what exactly these terms will mean. Similarly, we are concerned by the requirement that organisations provide financial information about their members.

The Government claims that these clauses are necessary because JRs are being driven by non-parties to a claim. [27] Even if a JR is funded by a third party, it seems extremely unlikely that this fact will have a bearing on the merits of the case. If an applicant is able to demonstrate that they have an arguable case and meet the rules of court on matters such as time limits and standing, they should be given a fair opportunity to make their case and should not be obstructed from doing so by onerous requirements to provide what may constitute personal financial information.

As noted elsewhere, the Government is seeking to restrict significantly the availability of public funding for bringing JR claims. A number of requirements of the clause are exceptionally vague and Liberty is concerned that the details of this process of information provision – to be set out separately – will impose a heavy bureaucratic burden on claimants and will possibly spawn satellite litigation about the extent of disclosure required and conflicting obligations of confidentiality. Proposals requiring organisations to declare information about their members seem particularly disproportionate and intrusive. For organisations with large membership numbers, the practical and principled difficulties of gathering and sharing this information would be huge. Ultimately, this provision is liable to act as a deterrent to those who wish to apply for JR.

If the judge considers financial information is necessary then he or she can ask for it. Making it mandatory that such information is provided is bureaucratic and unnecessary. We encourage Members of Parliament to test the case for this clause.

Clause 52 – use of financial information

Clause 52 would require the court or tribunal to take into account the financial information provided under clause 51 when determining costs. It also requires the court or tribunal to consider whether to order costs to be paid by a person other than a party to the proceedings on the basis of information provided under clause 51.

Amendment 17

Page 54, Line 7, leave out "must" and insert "may"

Effect

This amendment would retain judicial discretion as to whether or not to have regard to the information provided under the process set out at clause 51 when determining costs.

Amendment 18

Page 54, Line 13, leave out "must" and insert "may"

Effect

This amendment would retain judicial discretion as to whether or not to consider whether to order costs against a person other than a party to the proceedings.

Briefing

The requirements set out at clause 51 are already disproportionate and bureaucratic. But by also requiring judges to consider all the information that the clause 51 process generates and to consider whether to award costs orders against third parties would only serve to exacerbate the excessive nature of clause 51. The court is already able, if it considers it appropriate, to consider financial information and to award costs. By making it mandatory that courts undertake this evaluation exercise, the Government moves ever further away from its claimed objective of creating a more streamlined JR system.

Conclusion

Liberty would welcome further clarity about the purpose of clause 52 and encourages Members of Parliament to challenge this disproportionate incursion into judicial discretion.

Clause 53 – Interveners

In JRs, expert organisations will sometimes be granted permission from the court to ‘intervene’. This usually entails submitting oral or written legal analysis for the court to consider. Under clause 53, if a third party seeks to intervene in a JR, it would be required to pay its own costs. It would also be required to pay any costs specified by the parties to the case listed as incurred as a result of the intervention. Only in ‘exceptional circumstances’ would the court have discretion to order otherwise.

Under the current system, interveners tend to cover their own costs and in return the court will not normally order the intervener to pay the costs of the other parties. However the court – which has a wide ranging discretion in relation to interventions, such as to whether to allow an intervention, to direct the issues an intervention may cover etc. – also has discretion as to costs and so may make a costs order, notably where an intervention has been misguided or conducted in an inappropriate manner.

Amendment 19

Page 54, Line 27, delete clause 53

Effect

This amendment would remove clause 53 from the Bill.

OR -

Amendment 20

Page 54, Line 37, delete "must" and insert "may"

Effect

This amendment would allow the judge to retain discretion as to whether or not to make a costs order against an intervener rather than requiring him or her to do so.

Amendment 21

Page 54, line 36, leave out subsections (4), (5) and (6) and insert:

(-) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, the court may order the intervener to pay such costs as the court considers just.

(-) An order under subsection (4) will not be considered just unless exceptional circumstances apply.

(-) For the purposes of subsection (5), exceptional circumstances include where an intervener has in substance acted as if it were the principal applicant, appellant or respondent in the case.

Effect

This amendment would allow judges to award costs against interveners where the court considers it is ‘just’ to do so rather than requiring them to award them. It sets out that it will only be ‘just’ in exceptional circumstances, which include where the intervener has acted as if it were the principle applicant in the case.

Briefing

Interventions are largely considered to add value to the legal process, allowing the court to benefit from the insight, knowledge and experience of experts in a particular field. Many interventions made by NGOs or charities are in fact prepared by very experienced lawyers acting on a pro bono basis, meaning that the court can benefit from the analysis offered to it by national and international experts rather than just rely on the partisan submissions made by the parties to the case. Rather than complicate matters and prolong or confuse the JR process, often these interventions help to untangle the relevant law. In its response to the government’s 2013 consultation, the judiciary noted that the fact that very few costs orders are made against interveners "reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties." [28]

Interveners driving JRs?

Interveners do not ‘drive’ JRs. Rather, they provide analysis on a process that is already taking place. During the Second Reading debate on the Bill, the Lord Chancellor was asked whether the proposals on interventions would risk making it hard for people to intervene even though it would be constructive for them to do so. The Lord Chancellor replied that:

"My real concern is when pressure groups use individuals as financial human shields in cases that the groups wish to bring. They find someone who has no financial means, use them to challenge the government, and whether or not they win, the Government – that is, the taxpayers- are guaranteed to have to pay the bill." [29]

The Lord Chancellor provided absolutely no evidence to support the claim that interveners use individuals as ‘financial human shields’. Such a claim also completely disregards the fact that the court has total discretion as to whether or not to allow an intervention. A judge will consider both whether an intervention (a) is a valid use of court process and (b) will add any value to the legal process. A party who wishes to intervene will ordinarily write to both parties to a JR in advance and therefore each party will have the opportunity to explain to a judge if they object to the intervention. Under current practice, if a judge does allow an intervention and considers that the intervention was conducted inappropriately, it is open to him or her to order the intervener to pay costs. This system therefore contains safeguards to prevent and censure abuse of process and to ensure that the intervention is not a waste of time. Amendment 21 would replicate the current position for costs against interveners in JRs and reflects also the Rules of the Supreme Court, which set out that costs will not normally be awarded for or against interveners, but may be awarded where the intervener acts like a main party to the process. [30]

Financial interest?

In its consultation response, while accepting that interveners often support the court to establish facts and context, the Government then explained that interveners should have a ‘more proportionate financial interest in the outcome’. [31] This approach fundamentally misunderstands the nature of interventions, which are not about financial interest but rather about helping the court to reach the correct legal answer. But by exposing interveners – many of which are charities or NGOs without significant income – to uncertain and prohibitively high costs risks, the Government will significantly reduce the capacity of third parties to lend their expertise to the JR process. Parties making interventions do not stand to make a profit from their intervention, so it is illogical to tie their participation to their capacity to pay for the costs of others.

It is worth reiterating that judges already must give permission for an intervention and the judge retains discretion as to the issues to be covered by the intervention. In practice, judges will often be directive as to what the intervention can cover. In a sense, the better the intervention – in that it adduces different points to those raised by the parties – the more of a disincentive clause 53 will be to participation. Ultimately, it would be our justice system and the fair resolution of cases which pays the price for this change.

Liberty interventions

Liberty intervenes in cases to provide expert evidence to assist the court in complicated areas of law and policy. Our interventions can only be made where the court considers that we will add value to the legal proceedings. We intervened in the case regarding DNA collection and blanket retention on arrest under section 64 PACE. In assessing the distinction between DNA samples and DNA profiles in the Court of Appeal, Sedley LJ took this view of Liberty’s submission -

"This is why I have found Liberty's written submission of great assistance. It avoids the polar positions adopted, as tends to happen in litigation, by the parties and instead reasons by degrees. The distinction which Liberty draws between DNA profiles and the bodily samples from which the profiles are derived is in my judgment crucial to what we have to decide." [32]

Far from overcomplicating matters, third party interventions can help to untangle difficult areas of domestic legislation, regulation and case law. As Lord Neuberger (then Master of the Rolls) observed in Ladele v Islington London Borough Council (Liberty, intervening) [33] in the Court of Appeal, approving our approach -

"Liberty's argument is simple, and is based purely on the natural meaning of the 2007 Regulation."

In another, very recent, example of the value of third party interventions in important JRs, in HC v Secretary of State for the Home Department and Metropolitan Police [34] the High Court considered whether the Home Secretary had acted irrationally in refusing to change the rule that 17 year olds should be treated as adults for the purposes of criminal custody. This followed two tragic cases of suicide following the separate arrest and detention of two 17 year old boys. The High Court found that the Home Secretary’s refusal to treat 17 year olds as children for the purposes of custody breached Article 8 of the Human Rights Act 1998. In Annex B to the judgment the Court said -

"Much of the substantial material with which the court was provided came as a result of the submissions of the two interveners... Many of the important arguments were not contained in the claimant’s submissions but rather emerged, if one delved into the interstices, within the intervener’s submissions."

Conclusion

A good quality intervention which provides a different analysis and raises additional questions may well require the defendant to put further work into a case. However if the court has allowed an intervention then it must consider that this extra work is necessary and is in the public interest. Making it financially impossible for interveners – often charities or NGOs without access to substantial funds – to help courts to consider the relevant issues and reach the right answers is not in the interests of justice. We strongly encourage Members of Parliament to amend or delete this clause.

Clause 54 – Costs Capping Order

Clause 54 would set out the conditions to be met and process to be followed in order for a ‘costs capping order’ (CCO) to be made. A party will have to apply for a CCO under the Rules of Court and the Bill suggests that these rules may make reference to the provision by the party of information about the source, nature and extent of its financial resources. The court will only be entitled to make a CCO if it decides that the JR would constitute public interest proceedings and if the applicant would reasonably have to withdraw from proceedings in the absence of an order. The Bill restricts the definition of public interest proceedings to those in which an issue of general public interest is at stake and the public interest requires that the issue be resolved. Clause 54 does set out a list of factors for the court to take into account when deciding if proceedings are in the public interest (such as the number of people likely to be affected) but also provides that these sections can later be amended by statutory instrument.

Amendment 22

Page 55, Line 22, leave out subsection (3)

Effect

This amendment would remove the requirement that a CCO can only be awarded if permission to apply for JR has been granted.

Briefing

In a case between a public authority and a private individual or small NGO, there will ordinarily be a very significant disparity in resources. Save for those individuals who are of extremely limited means and qualify for legal aid support (an ever dwindling number thanks to brutal cuts to the system) or are extremely wealthy and can fund litigation privately, most people could not afford to take on the Government or a public authority if they were potentially liable for all of the costs of a case. In recognition of the chilling effect of costs liability on public law challenges, the courts developed the Protective Costs Order (PCO). PCOs can currently be made at an early stage in litigation and place a cap on the claimant’s (or, rarely, the defendant’s) liability for the costs of the case, making legal challenge a viable option. They are designed to facilitate cases of significant public importance, which involve issues that should be resolved in the public interest.

We welcome the Government’s endorsement of the importance of orders allowing costs to be capped. It is an admission of the central role that judicial review plays in protecting the public interest against illegal behaviour of the state and is a welcome recognition of the principle that justice should be open to all.

However it is extremely troubling that the Government is set to undo this good work by preventing applicants from applying for an order until after the permission stage of the JR process. The legal work undertaken up to and including the permission stage of JR can sometimes be significant. If it is incumbent on the applicant to accept the risk of a huge costs order at early stages of the process, it seems likely that very few individuals or organisations will be in a position to initiate JR claims, even if it is possible that at a later stage of proceedings a CCO would have been made. This undermines the rationale behind costs-capping, as hardly any claims will even get to the permission stage. This provision (clause 54(3)) almost completely negates the value of the clause in general.

Amendment 23

Page 55, Line 25, after "judicial review" insert "or any intervener"

Effect

This amendment would allow interveners to apply for CCOs.

Briefing

Unless changes are made to clause 53, interveners in JRs may be liable to pay significant costs of the parties to the case. Clause 54 represents an acceptance by the Government of the importance of ensuring that cases in the public interest are able to proceed regardless of the financial capabilities of the claimant. It follows, then, that if the court considers that an intervention will add value in the public interest, they too should be able to apply for financial protection from the court.

Amendment 24

Page 56, Line 10, leave out subsections (9), (10) and (11)

Effect

This amendment will delete subsections which will allow the Lord Chancellor by statutory instrument to make regulations which amend this clause.

Briefing

Clauses – often known as Henry VIII clauses – which allow primary legislation to be amended by subordinate legislation fetter the proper power of Parliament in scrutinising legislation. In this particular case, it is to be feared that secondary legislation will be used to restrict even further the availability of CCOs, stymieing all but the most deep-pocketed applicants from pursuing critical challenges against the state. It is important and appropriate that the courts retain some discretion as to whether a matter is in the public interest and the executive should not be in a position to seriously curtail the scope of CCOs without even the benefit of proper Parliamentary scrutiny.

Clause 55 – CCO: orders and their terms

Clause 55 sets out the factors the court must take into account when considering whether to make a costs capping order. It also sets out other terms of CCOs.

Amendment 25

Page 57, Line 8, Leave out "must" and insert "may"

Effect

This amendment would retain judicial discretion as to whether a CCO should apply to both the applicant and the defendant.

Briefing

As noted above, the Government has recognised the importance of CCOs as a tool for ensuring that justice, in cases of public importance, is not blocked due to the financial limits of the applicant. We urge restraint when setting rules which will tie the hands of the court when it makes CCOs. The court must have flexibility to make a decision as to what the interests of justice require in each particular case.

Amendment 26

Page 57, Line 12, Leave out subsections (3), (4) and (5)

Effect

This amendment will remove subsections that will allow the Lord Chancellor to amend this Clause by statutory instrument.

Briefing

As noted at paragraph 54 above, clauses which allow primary legislation to be amended by subordinate legislation can fetter the proper power of Parliament in scrutinising legislation. Significant and substantial changes to primary legislation should be made by primary – not secondary – legislation.

New Clause: legal aid, judicial review and delegated legislation

Amendment 27

Insert:

(1)The Legal Aid, Sentencing and punishment of Offenders Act 2012 is amended as follows:

(2) In section 9, after "schedule" insert the following subsection:

(-) No order made pursuant to subsection 2(b) may vary or omit any services specified in paragraph 19, Part 1, Schedule 1 (Judicial Review).

Effect

This amendment would require any changes to the funding of judicial reviews under the legal aid scheme to be made by primary rather than secondary legislation.

Briefing

As noted elsewhere in this briefing, the proposals contained in Part 4 of the Bill are only part of package of reforms to JR that the MoJ intends to take forward. We are incredibly concerned that proposals such as the ‘residence test’ and limiting the availability of legal aid for JR will have a severely detrimental impact on the capacity of individuals to hold the state to account. This amendment would require the Ministry of Justice and the Lord Chancellor to engage properly with the democratic process in order to make such significant changes in the future.

March 2014

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[1] Ministry of Justice, Judicial Review – proposals for further reform: the Government response, February 2014, paragraph 7.

[2] Carol Harlow and Richard Rawlings, Law and Administration 3rd Edition, September 2009.

[2]

[3] Ministry of Justice, Judicial Review – proposals for further reform, September 2013, paragraph 15.

[4] Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wales, November 2010, paragraph 4.16.

[4]

[5] Ministry of Justice, Transforming Legal Aid: Delivering a more credible and efficient system, April 2013 and Ministry of Justice, Transforming Legal Aid: Next Steps September 2013.

[5]

[6] Ministry of Justice, Transforming Legal Aid: Next Steps, from paragraph 2.11.

[6]

[7] Ministry of Justice, Judicial Review: proposals for reform, December 2012.

[7]

[8] Ministry of Justice, Judicial Review – proposals for further reform: government response, September 2013, para 46.

[8]

[9] Ministry of Justice, Judicial review – proposals for further reform, and Judicial review – proposals for further reform: government response.

[9]

[10] Ministry of Justice, Judicial Review – proposals for further reform, page 8 footnote 4.

[10]

[11] Ministry of Justice, Judicial Review – proposals for further reform, paragraph 10.

[11]

[12] Ministry of Justice, Judicial Review: Proposals for further reform: the government response, paragraph 7.

[12]

[13] Maurice Sunkin et al.. Public Law (2007) 545 p.550.

[13]

[14] Ministry of Justice, Judicial Review: Proposals for further reform, para 7.

[14]

[15] Ministry of Justice, Judicial Review Proposals for Further Reform, para 78.

[15]

[16] Ministry of Justice, Judicial Review Proposals for Further Reform, para 78.

[16]

[17] Ministry of Justice, Judicial Review – proposals for further reform: the Government response para 35.

[17]

[18] Lord Chancellor, The Daily Mail, 6 September 2013.

[18]

[19] Ministry of Justice, Judicial Review – proposals for further reform: Government response, para 41.

[20] Second Reading debate of the Criminal Justice and Courts Bill, 24 February 2014, Hansard at column 58.

[20]

[21] R v Bow Street Stipendiary Magistrate, ex parte Pinochet (no 2) [2001] 1 AC 119.

[21]

[22] R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 (CA).

[22]

[23] Second Reading debate of the Criminal Justice and Courts Bill, 24 February 2014, Hansard per column 76.

[23]

[24] Second Reading debate of the Criminal Justice and Courts Bill, 24 February 2014, Hansard per column 57.

[25] Senior Judiciary of England and Wales, Response to Judicial Review: Proposals for Further Reform’ para 22.

[25]

[26] Ministry of Justice, Judicial Review: proposals for further reform: government response, para 38.

[26]

[27] Ministry of Justice, Judicial Review – proposals for further reform: the Government response para 63.

[28] Senior Judiciary for England and Wales, Response to Judicial Review: proposals for further reform, para 37.

[28]

[29] Second Reading Debate of the Criminal Justice and Courts Bill in the House of Commons, 24 February 2012, Hansard per column 56.

[29]

[30] See Supreme Court Rules, Part 7, Rule 46(3).

[30]

[31] Ministry of Justice, Judicial Review – Proposals for further reform the government response, para 62.

[32] R (on the application of S) v Chief Constable of South Yorkshire; R (on the application of Marper) v Chief Constable of South Yorkshire [2002] EWCA Civ 1275 paragraph 72

[32]

[33] [2009] EWCA Civ 1357.

[33]

[34] [2013] EWHC 982 (Admin).