Criminal Justice and Courts Bill

Written evidence submitted by Equality and Diversity Forum (EDF) (CJC 28)

1. The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation. Further information about our work is available at www.edf.org.uk and a list of our members is attached. Our member organisations represent people who have any or all of the characteristics protected in the Equality Act 2010 and one of our key concerns is that each should have access to equal rights of access to justice regardless of their age, disability, gender and gender identity, race, religion or belief, and sexual orientation (unless there is a good reason why this is not appropriate).

2. The Equality and Diversity Forum (EDF) considers that Judicial Review is a vital remedy and one of the most important ways for citizens to hold Government and other public bodies to account. Lord Dyson, now Master of the Rolls has said – ‘there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review’. [1] The power to judicially review public decisions is an important reserve power enabling citizens to ensure good governance and we consider that further constraints on its use should be approached with very considerable caution.

3. Members of the EDF are concerned that these proposed changes will have a seriously chilling and adverse effect on the availability of Judicial Review and are concerned that, if these provisions are implemented, they may adversely affect the ability of people in the UK to secure their legal rights. In particular we are concerned about clauses 50, 53, 54 & 55.

Clause 50 - Requiring the court to consider the likelihood of whether there would have been a substantially different outcome for the applicant

4. This clause modifies the existing approach (which was developed by the courts in case law) so that the Court must refuse an application for Judicial Review if it thinks that it is ‘highly likely’ that the outcome for the applicant would not be substantially different if the decision in question had been taken properly.

5. This clause risks creating further delay, duplication and cost. Judicial Review has two stages, a permission stage and a full hearing of the issues. If this provision is implemented there is a danger that the permission stage hearing will have to be enlarged and will become a mini-trial of the substantive issues in a case. Furthermore, it could significantly change the supervisory function of our judges on Judicial Review applications. A judge seeking to determine how ‘highly likely’ a decision maker would have been to act differently had he complied with the law would be forced to reach a decision on what another body would decide if they are required to re-consider their decision. This is not currently the role of the Court and we do not think it is appropriate for a court to substitute itself for a public decision maker in this way.

6. We urge the Committee to remove clause 50.

Third party interventions

Clause 53 - Establishing a presumption that interveners in Judicial Review cases in courts will pay their own costs and any costs incurred by any other party because of their intervention

7. The role of interveners is to assist the Court. They are only permitted to intervene with the permission of the Court when the Court considers that they have something to add to the legal argument and the intervention will lead to better justice. In many cases interveners have raised important legal aspects of cases that may not have been raised by the parties themselves. We are therefore concerned at the possibility of third party interventions in Judicial Review cases being prevented or deterred.

8. Under the Civil Procedure Rules any person who is interested in the issues being considered in a Judicial Review case can seek permission from the court to intervene in the case usually by filing evidence or making representations. At the end of the Judicial Review case the court will consider who should bear the costs that arise from any intervention. The courts have powers to make an award of costs against a person who is not a party to a claim, such as an intervener.

9. However, clause 53 goes further than this by establishing a presumption that those who intervene in a Judicial Review case will have to pay any costs they have caused to the parties to the hearing that arise from their intervention, even when the points they make in their intervention are accepted by the Court. This will inevitably deter organisations from seeking to intervene in cases and is consequently likely to reduce the quality of decision making.

10. In the vast majority of cases interveners act thoughtfully and the Court will limit their intervention in a way that does not impose undue burdens on the parties. Administrative Court Judges are used to limiting interventions and are highly costs conscious. This means that there are not normally significant extra costs incurred as a result of interventions.

11. The Equality and Human Rights Commission (EHRC) and other relevant bodies often intervene and affect the outcome. This provision creates an expectation that a costs order will be made against an intervener unless they can show ‘exceptional circumstances’ why this should not happen. If the EHRC and other relevant bodies are at risk of a costs order they may become significantly more reluctant to intervene and this would, in our view, jeopardise the good administration of justice.

12. We urge the Committee to remove clause 53.

Costs – Cost Capping Orders

Clause 54 - 55 - Restricting the situations where a cost capping order can be made - A cost capping order limits the costs which a party may recover from another party at the conclusion of the case

13. Costs Capping Orders (referred to by the Courts as Protective Costs Orders) have been developed by the Courts in order to ensure that there is an equality of arms between the claimant/s and the defendant. These orders act principally to limit the costs liability of claimants, to ensure individuals can afford and predict the cost of litigation. They are only used when cases are considered to raise a serious issue which affects or may affect the public generally, or a significant section of it. It enables claimants to bring cases where they might otherwise be reluctant because of the risk of an adverse costs order. A body of case law has developed and the Courts have set out the principles to be applied in considering when and how Costs Capping Orders can be made.

14. There are two aspects of this clause that concern us. Firstly, this clause means that a cost capping order can only be made at the permission stage of proceedings. At this point considerable costs could have been accrued for which the applicant could be made liable. For a costs capping order to be useful for an applicant they would need to be available at an earlier stage. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a costs capping order cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. Secondly, clause 54(9) gives the Lord Chancellor very wide powers to add, omit or amend the ‘matters to which the court must have regard when determining whether proceedings are public interest proceedings’ by regulation. We agree with the Public Law Project when they say that this would be – ‘unprecedented and constitutionally improper given that the Government stands to benefit (as a regular party to litigation) from its ability to make rules governing the courts’ discretion.’ [2]

15. We urge the Committee to remove clauses 54 - 55.

March 2014

Annex

Equality and Diversity Forum members

Action on Hearing Loss

Age UK

British Humanist Association

British Institute of Human Rights

Children’s Rights Alliance for England (CRAE)

Citizens Advice

Disability Rights UK

Discrimination Law Association

End Violence Against Women Coalition

Equality Challenge Unit

EREN – The English Regions Equality and Human Rights Network

Fawcett Society

Friends, Families and Travellers

Gender Identity Research and Education Society (GIRES)

JUSTICE

Law Centres Network

Mind

National AIDS Trust

National Alliance of Women’s Organisations (NAWO)

Press for Change

Race on the Agenda (ROTA)

Refugee Council

RNIB

Runnymede Trust

Scope

Stonewall

The Age and Employment Network (TAEN)

Trades Union Congress (TUC)

UKREN (UK Race in Europe Network)

UNISON

Women’s Budget Group

Women’s Resource Centre