Criminal Justice and Courts Bill

We do not think that a defendant or an interested party who unsuccessfully contests an oral permission hearing should be in any better position than one who applies unsuccessfully for summary judgment: both have caused the court to hold a hearing which has turned out to be unnecessary.

…

However, if our logic …is correct in principle, then the corollary is also right. Claimants must bear the equivalent responsibility for continuing to maintain that their claim is properly arguable." [9]

15. Unfortunately, the Government now proposes that an unsuccessful claimant should usually pay the Respondents costs. If successful, they would only recover costs should their claim proceed to judgment and succeed. The senior judiciary had openly criticised this lack of balance in the Government’s approach:

To the extent that the Government intends to discourage the bringing of weak claims by the readier grant of costs against unsuccessful claimants, discouragement of defendants from delaying the progression of hearings by unsuccessfully opposing the grant of permission should be an equal consideration. [10]

16. This amendment will allow Members to ask the Minister to challenge the Government’s justification for reform, which it continues to base on the need to save money and deter the expanding use of court time on judicial review. Alternatives designed to save money and increase efficiency – including by deterring respondents from resisting permission in well-founded cases or from pursuing "hopeless" defences in practice – have been proposed. The Minister should explain why the unbalanced approach to reform proposed is justifiable. JUSTICE and others have produced extensive commentary to illustrate that this proposal will deter claims from proceeding, to the detriment of the ability of those without independent means to hold Government to account. In those cases that proceed, the proposals are likely to increase costs and delay in practice.

Part 4: Judicial Review

Clause 50: Procedural illegality

Proposed Amendments

Clause 50 should not stand part of the Bill.

Alternatively:

Page 52, Line 3, leave out "must" and insert "may"

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

Page 52, Line 15, leave out "and"

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

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

Page 52, Line 19, leave out "must" and insert "may"

Page 52, Line 38, leave out "and"

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

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

Page 52, Line 45, leave out "must" and insert "may"

Briefing

17. The Bill would restrict the scope of the Administrative Court to consider claims for judicial review which raise questions of procedure. It proposes that in every case where a respondent authority asks, the Court must consider whether, had the relevant authority acted lawfully, it would be "highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."

18. JUSTICE considers that Clause 50 is unnecessary and inappropriate and should not stand part of the Bill. Our alternative amendments would place it within the discretion of the Court to consider whether to refuse relief in any case where it would be inevitable that the outcome would not differ. Importantly, this would maintain the proper supervisory function of the judiciary on judicial review. If the "highly likely" test is adopted, there is a significant risk that judges will be invited to step into the shoes of an individual decision maker and to second guess how they might have acted had they acted lawfully. In addition, these amendments would leave the timing of the Court’s consideration of any "no-difference" test to its discretion. The Bill would force the Court to consider this question at permission stage on the prompting of a respondent. This will lead to additional cost and delay as the merits of a decision and its likely outcome are explored at an early stage in the process.

Background

19. The proposals in Clause 50 illustrate a significant lack of understanding about the purpose of administrative law and the function of judicial review. The Second Consultation asked for examples of cases "brought solely on the grounds of procedural defects" and seemed grounded in the implication that it should be easier for the Court to dismiss, or refuse a full hearing in cases which raise issues of procedure. This is reflected in the Impact Assessment which explains: "In some cases, whilst technically successful, some of these challenges may result in no substantive change to the original decision".

20. Judicial Review is a supervisory remedy. One of its core purposes is to ensure that administrative decision makers act within the bounds of the law, including by following fair processes that reflect the principles of natural justice. Where statute or policy requires that a particular process be followed, in order to ensure that a decision takes into account all of the relevant factors deemed necessary by Parliament, administrative law requires that those procedures be followed for good reason. Every lawyer – and every decision maker – has encountered a "cut and dried" case which turns out, after consideration, not to be so straightforward. Just as due process exists in criminal procedure to deal with the risk of wrongful conviction in cases where individuals might be deemed "clearly guilty"; administrative procedures exist to encourage good administrative practice and to ensure that the varied interests of those affected are taken into account. It is extremely difficult to second guess how a disputed decision might have been different if a lawful procedure had been followed. This is particularly significant where the procedural flaw in play is a failure to comply with an obligation to consult. The lowering of the threshold of "no difference" should not be allowed to undermine the process of engagement in democratic decision making. Where an individual would have had the opportunity to make representations if an authority had acted lawfully, it is difficult to second-guess what would have been said by the applicant – and other respondents to the consultation - but also how the authority might have reacted to the representations made. [11] The case law is clear. Caution must be exercised in applying the "no difference" test. [12] In R v Tandridge District Council ex p Al Fayed [2000] 1 PLR 58, 63C-D, the Court explained:

"Once it is appraised of a procedural impropriety the court will always be slow to say in effect, ‘no harm has been done’. That usually would involve arrogating to itself a value judgement which Parliament has left to others."

Clauses 51 and 52: Financial Information and Judicial Review

Proposed Amendments

Clauses 51 and 52 should not stand part of the Bill.

Alternatively:

Clause 51

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

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

Page 53, Line 22, leave out "and"

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

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

Page 53, Line 44, leave out "and"

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

Clause 52

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

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

Page 54, Line 12, insert:

(-) Where the information in subsection (2) includes confidential information about the financial position of a natural person, the Court may to the extent necessary to protect the confidentiality of such information –

(a) sit in private; and

(b) impose reporting restrictions

Briefing

21. The Bill proposes that certain financial information must be provided by all claimants with their application for judicial review before their claim can proceed. Clause 52 provides that a Court must always consider whether to make an order for costs against any organisation or individual named in that information, including parties other than the claimant. Very little information has been given about how this information will be processed or how the Court will be expected to approach the obligations in Clause 52.

22. The amendments we propose would limit the information to be provided to information about the ascertainable financial resources of the claimant, including any third party financing. At present it would require any claimant to disclose information about financing "likely to be available". JUSTICE considers that this test is extremely uncertain and likely to have a chilling and unjustifiable impact on applicants for judicial review. We would remove a specific requirement for bodies corporate to name their members and their ability to resource litigation. Ministers should provide a fuller explanation as to their understanding of this clause and its relationship with the law on the ordinary liabilities of corporate entities and their members. It is as yet unclear how this measure is intended to apply in practice.

23. The other amendments would permit the Court to waive the need to disclose financial information at its discretion. Amendments to Clause 52 would permit the Court to take steps to protect such information as is disclosed by use of private sittings and reporting restrictions, if justified and proportionate. At present, it is unclear how claimants who wish to protect information about their finances, including commercially sensitive information, might be permitted to pursue an application for judicial review. These draft safeguards are designed to give the Court some flexibility to protect the rights of an individual litigant in practice.

Background

24. While it may appear reasonable for the court to pursue all avenues for the enforcement of costs orders legitimately made against unsuccessful applicants, the requirement for would-be applicants to provide any significant information about their financial information at the outset of a claim is new. In the context of this package of reforms, JUSTICE is concerned that these measures will - by design or coincidence – further deter the use of judicial review by people without independent means. [13] Cumulatively, this approach will limit the ability of groups of people, including vulnerable people, to access judicial remedies for the unlawful activities of Government.

25. It would seem inappropriate in many cases to distribute this information to the parties in a case, particularly where the information is personal or may relate to commercial sensitivities. If the information is to be gathered solely for the purposes of aiding costs recovery, Ministers should be asked to explain why this information should be provided at the point of application rather than during the enforcement process after it is determined that an individual party is liable for costs. In this regard, we note that there is already a considerable body of existing law which governs the ability of the court to pursue costs from "unseen" funders and backers of litigation. [14] We are concerned that measures designed to improve recovery of costs should not ultimately be used to limit access to judicial review only to those with substantial independent means by deterring others from pursuing litigation even where their claims are strong. By proposing to limit the ability to access PCOs and by limiting access to legal aid, it is likely that individuals and groups without significant funds will explore other avenues of support for litigation. If the mechanism for the handling of information in connection with the recovery of costs is unclear, or the means by which the court might pursue an individual are uncertain, these avenues are likely to be similarly constrained. For example, if a charity obtains a grant from a third party organisation for the purposes of pursuing litigation capped at £5,000, will the court be capable of enforcing a costs order against the donor for any sum over that amount? What about a solicitors firm or a law centre that acts pro bono where a claimant is unable to secure legal aid ? Would family members who support litigation brought by a vulnerable or disabled relative seeking to challenge withdrawal of services be affected? These are questions which have not yet been explored and which should be better defined before Parliament approves the changes proposed in Clauses 51-52.

Clause 53: Interventions, costs and the public interest

Proposed Amendments

Clause 53 should not stand part of the Bill.

Alternatively:

Page 54, Line 37, leave out "must" and insert "may"

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.

Briefing

26. The Bill would require the High Court or the Court of Appeal to order costs against an intervener on an application by any party except in exceptional circumstances. Exceptional circumstances are to be defined in the rules of court. The Bill does not distinguish between successful and unsuccessful parties. On application by either, the Court would, on the Government’s proposals, generally be bound to make an order against an intervener.

27. These amendments would restore the discretion of the Court to control the application of costs against interveners. They reflect the current practice of the Supreme Court (and other domestic courts) as formalised in the Rules of the Supreme Court.

Background

28. Courts currently hold the discretion to make an order as to costs against any intervener. In practice, the general approach of the UK courts has been that the costs which result from an intervention are treated as costs in the case (in practice meaning that the losing party pays their own and the other party’s costs of preparation and representation, but not the intervener’s costs, who bears their own). This reflects the nature of a public interest intervention being to assist the court and add objective value to the court’s determination of a case. It underlines the special position of an intervener, who participates in any case only with the consent of the court. This position has been formalised in the Supreme Court Rules, where Rule 15 provides that there will generally be no order for costs, for or against, an intervener. The court does however retain the discretion to order costs, particularly where an intervener effectively steps into the shoes of one party or another. [15] This reflects earlier practice in the House of Lords and open to other courts. This settlement reflects the value of reasonable intervention to the court by ensuring that interveners must be in a position to support the costs of their own contribution, yet retains a discretion to act where an intervener imposes an unreasonable burden on the parties to the case.

29. The proposals in Clause 53(2) appear designed to deter any applicant from pursuing an intervention in the public interest, except before the Supreme Court (where it appears that the Rules of the Supreme Court will continue to apply). [16] Requiring the court to order an intervener to pay any costs of the original parties arising as a result of its intervention is likely to act as a significant bar on participation to many third party interveners. Many interveners – JUSTICE included - operate with very limited resources, and are subject to the oversight of a Board of Trustees, for whom risk management is a primary concern. A significant number are charitable organisations with an obligation to account for their activities to the Charity Commission. The threat of an as-yet-undetermined costs risk will operate as a significantfactor in whether to pursue a particular application.

30. By contrast, these changes are unlikely to have a significant impact on interveners for whom a costs risk will not be a major consideration. It is unlikely that Government Departments, major commercial organisations or corporations will be affected.

31. The Government has produced no evidence to support any claim that the current arrangements have caused a significant problem for litigants or the courts. We are concerned that these proposals should not proceed on the basis of a misunderstanding about the role and function of a public interest intervener. In particular:

· The Court as gate-keeper: The Government refers to individuals who "choose to intervene". [17] For example, in its response to the Second Consultation, it explains:

The Government considers that those who choose to become involved in litigation should have a more proportionate financial interest in the outcome and this should extend to interveners.

While parties may choose to pursue an intervention, the scope and character of any intervention is ultimately at the discretion of the court hearing the relevant claim. While procedural rules may vary in the High Court, the Court of Appeal and the Supreme Court, in each instance a would-be intervener must make an application to intervene supported by grounds. As we explain in To Assist the Court, this will in most cases require an intervener to illustrate that they will bring value to a case not likely to be met by the parties and their contribution will assist the court in its consideration of the case. For example, in the Supreme Court Rules, Rule 15, expressly refers to interventions by individuals with an interest in proceedings brought by way of judicial review or :

any official body or non-governmental organization seeking to make submissions in the public interest.

Furth er guidance is provided in Practice Direction 8, which references the guidance of Lord Hoffmann that:

An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. [18]

Although no such specific guidance is given in connection with reasonable intervention in the High Court and the Court of Appeal, it is understood by practice that submissions made must assist the court by adding something tangible to its consideration of the case, in order that such intervention will serve the public interest.

Thus, in the strictest sense, in every case, an intervener is invited by the c ourt to play a role which is defined ultimately by the court .

The Government intends costs to be divided proportionately to the assumption of financial interest in the case. This appears to subvert the role of the traditional public interest intervener, where their involvement has no direct interest for the organisation. In any case, an intervener can neither win nor lose. Instead, their contribution to the case is made in the public interest, to assist the court. They are contributing the cost of their own involvement to assist the court in reach ing a conclusion in the case, which is objectively improved by a consideration of the law go ing beyond the dispute between the parties. In JUSTICE’s experience, our interventions generally focus on making good law, consistent with the rule of law, comparative practice and the UK ’s international obligations.

· The public interest in interventions: The Government recognises that the purpose of most interventions is to serve the public interest by placing information or argument which will add value to a case before the court. [19] It is extremely unusual – but not unknown - for third parties to be granted permission to intervene (rather than be joined) to represent their own personal interests. [20] It is regrettable that neither the Second Consultation document nor the Government’s Response attempted to assess or quantify the value to the public interest of interventions undertaken for that purpose. Nor does it consider when an intervention might be beneficial to parties in a case where an intervener addresses issues – such as comparative practice – which the parties might otherwise be invited to consider by the court. The long term benefit to the development of the law of interveners willing to put objectively sourced information and argument before our judges to help ensure that the development of precedent is informed by the wider public interest outside the immediate demands of a case is not explored. Although these benefits may be difficult to quantify in monetary terms, the support of the senior judiciary for reasonable third party interventions is clear. As Baroness Hale recently pointed out:

Once a matter is in court, the more important the subject, the more difficult the issues, the more help we need to try and get the right answer. […]

But from our – or at least my - point of view, provided they stick to the rules, interventions are enormously helpful. They come in many shapes and sizes. The most frequent are NGOs such as Liberty and Justice, whose commitment is usually to a principle rather than a person. They usually supply arguments and authorities, rather than factual information, which the parties may not have supplied. [21]

Judges have regularly expressed their view – judicially and extra-judicially – that the involvement of third party interveners in the public interest is beneficial. [22] In the response of the senior judiciary to the Second Consultation, they explain:

The court is already empowered to make costs orders against non-parties. The fact that such orders are rarely made reflects the experience of the court that, not uncommonly, it benefits from hearing from third parties. Caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court.

In an adversarial system where few resources are allocated towards research facilities and support of our senior judiciary, it is unsurprising that judges, and specifically the senior judiciary, find interventions helpful in determining claims where significant issues of public interest are raised. In this context, it is understandable that the Government was unable to produce any specific evidence in its Consultation of a problem posed by individual interventions, or the role of interveners more generally.

· The scope of an intervention: Whether in the Supreme Court, Court of Appeal or the High Court, the scope of an intervention can be controlled by the court , with specific guidance provided by the Supreme Court Rules on the conduct of a reasonable intervener. For example, although the consent of the parties to an intervention is not required, it is always sought before an intervention is pursued. Similarly, the scope of an intervention is expected to be reasonable and proportionate to the value to be added, with specific guidelines offered by the Supreme Court that written submissions should usually be less than 20 pages. It is for the court to decide whether oral submissions from an intervener might assist, and for the court to determine how long those submissions should be. Where an intervener acts unreasonably, it is open to the court to make an order as to costs. We return to this issue below, but the desire to avoid imposing any unreasonable burden on the parties and to avoid increased costs associated with disproportionate additions to a case will be foremost in the mind of a reasonable intervener and their representatives.

32. The Government has given no indication of having considered the practical implications of the costs presumption in Clause 53(2). [23] The impact on the initiation of individual interventions aside, the practical implications for the allocation of costs between parties and interveners is yet to be explored. While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of "exceptional circumstances" proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? In fact, it may be the case that, the more useful an intervention, the more costly it will be for the organisation concerned. In any event, the allocation of costs referable to an intervention is unlikely to be straightforward. The implications of this are two-fold – increasing the uncertainty of any potential costs risk for a putative intervener and increasing administrative costs for the court in connection with any intervention it accepts.

Clauses 54 and 55: Protective costs orders and the public interest

Proposed Amendments

Clause 54

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

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

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

Clause 55

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

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

Briefing

33. The Bill proposes to place the making of Protective Costs Orders (PCOs) on a statutory footing. JUSTICE does not object to codification of this process in principle, although we are not persuaded it is necessary or justified by any evidence that PCO cases are problematic. However, we are concerned that, as drafted, the statute would fundamentally undermine the utility of the PCO to preserve public interest litigation and unduly restrict the discretion of the court to do justice in the limited number of cases where such protection is considered justifiable.

34. These amendments would:

(a) Allow the court to consider a PCO before permission is granted (in line with current practice);

(b) Enable interveners to make applications for PCOs (in line with current practice);

(c) Remove Henry VIII powers which would enable the Minister to revisit the circumstances when a PCO might be available, including when such orders might be in the public interest; and

(d) Restore the discretion of the Court to consider when a reciprocal order capping the costs of any applicant would be in the public interest (in line with current practice).

Background

35. Although PCOs affect a limited number of cases. This limited number is perhaps explained as PCOs may only be considered in cases where the court determines that there is an especial public interest in the claim being heard. [24]

36. In judicial review, and specifically the types of cases in which PCOs are generally sought, the pre-permission hearing costs can be significant. Jaffey and Hickman cite recent instances where the parties have incurred pre-permission costs in excess of £30,000. [25] If a PCO cannot be obtained to protect the claimant against the risk of liability for the entirety of unknown and potentially substantial costs, it is very likely that claims that raise issues of wider public interest will not be brought. In addition, the link to permission reflects a misunderstanding of the operation of judicial review more generally. Legitimate claims may settle before permission is granted, securing an effective remedy in practice for the applicant and others and ensuring that a Government decision is retaken within the bounds of the law. Yet, in some public interest cases, without the protection of a PCO, there will be no-one to issue proceedings and no incentive on a wayward Government body or public authority to change its ways. This seemingly minor procedural change could ultimately undermine the purpose of the PCO and its codification.

37. Currently, the determination of whether a PCO serves the public interest remains a matter for the court’s discretion. Following a line of existing case-law, the court will consider a number of factors including whether the issue is a matter of public importance and whether the proceedings are likely to proceed otherwise. [26] These factors are reflected in Clause 54. Regrettably, Clause 54 provides for the Lord Chancellor to amend the definition of public interest, removing or adding relevant factors in secondary legislation, albeit subject to the affirmative procedure. We can see no justification for permitting the Lord Chancellor to determine the principles applicable to PCOs without the opportunity for full parliamentary oversight. In effect, this measure would displace the power of the court to determine factors relevant to the public interest. If the Bill proposes that this should be the case, Parliament should take full responsibility for setting those criteria. In the majority of cases where a PCO is likely to be sought, a Government Department or public authority is likely to be the respondent.

38. Clause 55 provides for the criteria which the court should apply when considering the terms of any costs cap to be applied to either party’s cost liability under a PCO. Again, these broadly reflect a codification of existing rules applied by the courts, including the financial resources of the parties and anyone supporting the litigation and whether the party which benefits from the cap is represented pro bono. However, Clause 55(3) provides for the Lord Chancellor to revisit any of these criteria in future regulations, albeit again subject to the affirmative procedure. Changes to these criteria could significantly alter the purpose and scope of any PCO. JUSTICE considers that such changes should be properly subject to parliamentary scrutiny if a new statutory regime is to displace the discretion of the court.

39. Clause 55 currently would require the court to make a reciprocal order in every case where a PCO is made in favour of the respondent, to limit the costs recoverable by the claimant in the event that they would win the case. The Government originally proposed that in every case the orders must not only be reciprocal, but mirrored. Existing case law requires the court to consider the necessity for a "cross-cap" in every case. JUSTICE considers that the court should retain the discretion to consider when a reciprocal order truly serves the public interest. The level of a PCO is determined in order to ensure that a claimant is able to bring a claim – a claim where there is a public interest in its determination that would otherwise not be brought – and will be set at a level designed to allow the litigation to proceed according to the means of the claimant. The PCO serves the public interest. While a costs-cap ensures that the claimant, benefitting from this exceptional procedure, does not act unreasonably, whether a public body found to have acted unlawfully is to be excused from paying recoverable costs at a reasonable rate raises different public interest questions.

Clause 58: Delegated powers and transitional measures

Proposed Amendments

Page 58, Line 36, leave out "supplementary" and "or saving provision"

Page 58, Line 38, leave out subsection (2)

Briefing and background

40. These amendments would remove the Henry VIII power and would limit the power to make "supplementary" or "saving" provisions. The power to make consequential and supplementary provision in the Bill is extremely broad. We share the concerns expressed by others, including the Bar Council, that this section, providing as it does, for an extremely wide Henry VIII power, is exceptional and should be closely examined by members of both Houses.

41. Parliamentarians may wish to consider the application of these powers to the amendment of procedures for judicial review in Part 4. Given the constitutional significance of these measures, explained above, we consider that a Henry VIII clause of this kind is entirely inappropriate.

PART 3

Leapfrogging (Clauses 32-35)

Proposed Amendments

Closed material proceedings and leapfrog

Page 35, Line 18, insert the following new subsection

(-) In section 15 (Cases excluded from s.12) after subsection (4), insert-

(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c18) has been made.

Page 37, Line 30, after subsection (4), insert-

(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c18) has been made.

Page 39, Line 30, after subsection (4), insert-

(5) No certificate shall be granted under section 12 of this Act in any proceedings where closed material proceedings under Rule 54 of the Employment Tribunals Rules of Procedure pursuant to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (SI 2004/1861) have been used.

Clause 35 should not stand part of the Bill.

Who should authorise leapfrogging in cases of "national importance"?

Page 34, Line 34, delete "insert "or that the conditions" to the end of subsection (2)(a).

Page 34, Line 39, delete subsection (3) and insert the following new subsection:

(-) After Section 12, the following new section is inserted:

(-) (Application to the Supreme Court for permission to appeal in cases of national importance)

(1) In the alternative conditions, any party may apply to the Supreme Court for a certificate enabling an appeal to be made directly to the Supreme Court.

(2) The alternative conditions are that a point of law of general public importance is involved in the decision and that:

(a) The proceedings entail a decision relating to a matter of national importance or consideration of such a matter;

(b) The result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, a hearing by the Supreme Court is justified; and

(c) The benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.

Briefing

42. The first group of amendments would prevent leapfrog in any case where a court or tribunal has used the closed material procedure authorised under specific statutory frameworks or under the Justice and Security Act 2013. While the Government clearly intends the procedure to be available in these cases, JUSTICE is concerned that removing the consideration of the Court of Appeal will inadvertently expand the number of claims where the Supreme Court is invited to sit subject to Closed Material Procedures ("CMP"). The Supreme Court Justices have themselves expressed their concern about the use of these procedures. The ability of the Court of Appeal to narrow the legal issues which require determination by the Supreme Court in these cases is arguably crucial to the minimisation of the number of closed judgments which the Supreme Court may be required to make. Parliamentarians may wish to consider whether, if leapfrog is appropriate at all in these cases, whether particular provision should be made for consideration of whether the Supreme Court is likely to be required to sit in closed session in order to determine a claim. If so, this factor should vitiate against any leapfrog appeal.

43. The Bill proposes to amend the current procedure which applies to leapfrog appeals to expand the circumstances when they will be available, to include cases where the first instance court considers that a case is one of "national importance" and so significant that early consideration by the Supreme Court outweighs the benefits of consideration by the Court of Appeal. The second group of amendments would require an application to be made to the Supreme Court to approve of the use of the leapfrog procedure in these cases. It would also make the criteria proposed cumulative. The current approach in the Bill is modeled on the existing procedure for leapfrog. However, this test will provide for a much expanded set of circumstances, more subjectively determined, when a curtailed provision for appeal is deemed appropriate. That the test hinges on a lower court’s assessment of national importance (determined most likely after hearing argument from a Government department or public agency) must be considered carefully. While the Supreme Court will retain the power to refuse to hear an appeal, and a route back to the Court of Appeal is maintained, we are concerned that, in these cases, referral will put significant pressure on the Supreme Court to add cases assessed as "nationally important" to its docket. The claims are, by their nature, likely to be subject to a high level of public scrutiny. Whether a route back to the Court of Appeal will realistically remain open in these circumstances is as yet untested. Parliamentarians should ask the Minister to explain why the existing model for the management of leapfrog appeals is appropriate for the consideration of a much expanded group of cases when the existing requirement for the parties’ consent is removed.

Background

44. JUSTICE recognises the attraction of reducing delay in some cases where a determination of the Supreme Court may be the only sensible means to resolve a case (for example, where a party seeks to challenge binding precedent from the Court of Appeal, House of Lords or the Supreme Court).

45. We are concerned that the Supreme Court has limited time and resources and must remain in control of its own listings, in order to ensure the fair management of its time and the prompt consideration of the most pressing issues for determination, whether according to the individual impact of an issue or the constitutional significance of any case. While these provisions in the Bill retain the power of the Supreme Court to refuse permission to appeal, this form of docket control will be exercised in circumstances where the case involved is likely to be subject to significant public scrutiny, having been assessed by the lower courts – and most likely the Executive – to be of particular national significance. In these circumstances, the Justices may be more reluctant to refuse permission. The lower courts and tribunals will retain the power to certify any appeal suitable for the Supreme Court without consideration by the Court of Appeal. While it is important that a route back to the Court of Appeal is retained by the Bill, it is unclear whether an applicant, refused permission by the Supreme Court will, in practice, retain a realistic prospect of successfully securing a hearing before the Court of Appeal and whether any subsequent hearing might be impacted by a refusal by the Justices to consider the case on leapfrog.

46. Respondents to the consultation – including the senior judiciary – highlighted that the Court of Appeal performs an important function, narrowing issues subject to appeal and honing the arguments of the parties. [27] It is regrettable that the Government has not engaged with the significance of the leapfrog procedure in its justification for reform. The Supreme Court is a court of last resort, designed to consider limited, significant issues of law in the public interest. It has far fewer judges than the Court of Appeal. The judges of the Supreme Court – and the parties in any ind ividual case – may benefit from the consideration of the Court of Appeal where an interim judgment might act to narrow the issues in dispute and better clarify the applicable law. Without this interim exercise, the appeals heard by the Supreme Court are likely to be more complex and more time- consuming. Parliamentarians may wish to consider whether – in light of the expanded number of courts capable of certifying a leapfrog referral and the significant expansion of the grounds available – it may be preferable for the Supreme Court to control both referral and permission to appeal in "national significance" cases.

47. We have particular concern over the function of a leapfrog appeal from the Special Immigration Appeals Commission (SIAC). Most of the cases considered by SIAC involve the hearing of evidence in closed material proceedings (CMP) (where one party and their legal team may be excluded entirely from part of a case and represented instead by a security vetted special advocate who cannot communicate with them directly). Although it is within the power of the Supreme Court to consider CMP material, the Justices have expressed their concern that this should be an exceptional exercise given the constitutional function of the Court in setting binding precedent. [28] In SIAC cases, the Court of Appeal is more appropriately placed to sit in closed session in order better to define the legal issues subject to appeal, separate from the contested facts in the case, including material considered in CMP. If the Court of Appeal is more routinely bypassed, it is arguable that the Supreme Court may be required to sit more regularly in closed session. JUSTICE agrees with the guidance of the Justices in Bank Mellat and considers that this would be an undesirable development. There is nothing on the face of the Bill which would make special provision for SIAC to consider whether – in cases involving CMP – consideration by the Court of Appeal might better resolve the issues in the case and might resolve any closed matter before necessary consideration by the Supreme Court. JUSTICE considers that this must be a minimum safeguard before any leap frogging procedure is considered for SIAC or in any other case where CMP is utili s ed .

March 2014