Criminal Justice and Courts Bill

Written evidence submitted by Steve Symonds (CJC 30) 

Criminal Justice and Courts Bill – Part 4: Judicial Review

1. I am no longer a practising lawyer, and have never been in private practice. I have previously represented for free individual claimants and appellants before a range of tribunals in a paid or voluntary capacity over many years. I have also provided free advice to various NGOs and one statutory body on the merit or otherwise of engaging in judicial review litigation, again sometimes in a paid and sometimes in a voluntary capacity.

2. This submission concerns measures on judicial review in Part 4 of the Bill, in particular clause 50 (‘no difference’ cases), clause 53 (interveners and costs) and clause 54 (protective costs orders).

3. Having regard to what has been said in the media and Parliament over recent years, [1] and in the Ministry of Justice consultation preceding the measures in this Bill, [2] there is much confusion or misapprehension about judicial review – how it functions and its role in our constitutional settlement. This submission, therefore, addresses certain misconceptions before providing short observations upon the relevant clauses.

4. In recent years, a fashionable misconception has been that judicial review is a modern invention. [3] As the late senior Law Lord, Tom Bingham, has explained in his seminal book, The Rule of Law, judicial review concerns "old powers, exercised for centuries." [4]

5. While the rise in judicial review claims since the 1970s and 1980s has been striking, this is exaggerated by comparison with the previous period from the early part of the twentieth century onwards, a time which one former member of the senior judiciary has referred to as a "long sleep". [5] Another eminent jurist, Sir William Wade wrote:

"During and after the Second World War a deep gloom settled upon administrative law, which reduced it to the lowest ebb at which it had stood for centuries. The courts and the legal profession seemed to have forgotten the achievements of their predecessors and they showed little stomach for continuing their centuries-old work of imposing law on government..." [6]

6. The volume of judicial review claims is at an all time high. However, in comparing past periods during which the exercise of these old powers has flourished, it is well to recall that an important reason for this lies in the democratizing effect of such matters as the law centre movement, the provision of legal aid and, as Tom Bingham explained in a lecture at the Hebrew University of Jerusalem in 1999, reform of the court:

"Apparently modest in scope, and made without statutory intervention, these procedural changes transformed judicial review from the part-time activity of the few to a mass sport for the many. In the process an old truth was demonstrated: that with courts, as with airlines, a demand only becomes evident when the means exist to meet it." [7]

7. It is not wrong in principle to consider whether this ‘mass sport’ can be made more efficient. However, whereas that term may now appear unfortunate, possibly even a little frivolous, it is surely to be celebrated, as Tom Bingham clearly intended it should be, that access to the courts and the powers to protect the individual against unlawful excesses by a state that by any measure is vast (whether measured in terms of powers, jurisdiction, officials or administrative bodies) is more equitably and widely distributed than previously. It should be a first concern that – with the widespread withdrawal of legal aid, and the sharp decline of the law centre movement in particular and of other advice agencies [8] – measures in this Bill are likely to further reverse those gains.

8. As regards the more recent rise in judicial review claims over the last ten years or so, it has been shown by others that this is largely or completely explained by a rise in asylum and immigration claims. [9] It is significant that over this period there have been successive statutory measures introduced to curtail or remove asylum and immigration appeal rights, [10] an extraordinary expansion in the volume and complexity of immigration rules, [11] a significant expansion in the use of immigration detention, [12] the debacle of the Home Office asylum legacy backlog clearance, [13] and repeated failures of the Home Office to give effect to decisions of the courts. [14] These are but some of the reasons behind the rise in these claims. In the circumstances, it is remarkable that the Home Office is currently sponsoring another Bill to further remove appeal rights, [15] which – as it expressly acknowledges [16] – can be expected to drive still more judicial review claims.

9. The period of ‘long sleep’ was not without consequence for the legitimacy of government in the UK. This is attested by the titles of such publications as The New Despotism by then Lord Chief Justice, the Lord Hewart of Bury, and C K Allen’s Bureaucracy Triumphant and Bureaucracy Again. [17] The following from 1928 provides for a sobering comparison:

"What we now find... is that large judicial duties of an important character have been given, not to persons holding judicial office, not even to known and ascertainable individuals, but to vast departments of the State, huge administrative organisations employing thousands of anonymous civil servants." [18]

10. Accordingly, Parliament should be slow to accede to any major revision in the area of judicial review. The judicial arm of our constitutional government may be less assured of respect in the public eye than it has been previously or than may be ideal. But Parliament is itself hardly immune from a lack of public esteem. If it is to act to deprive whole communities, [19] based upon their relative lack of means, of effective access to judicial review as a means to safeguard themselves against what many may regard as the machinery of an overweening state and others may consider to be a state that has abandoned their interests and needs, this will hardly contrive to improve Parliament’s standing.

11. Whatever individual parliamentarians may think about the powers necessary for an effective executive arm of our constitutional government, or the requirements of austerity, it is very unlikely that pleas to a democratic mandate based upon such electoral turnouts as have become normal will carry much sway. [20] This is, of course, not helped by the substantial delegation of considerable power to the executive, as has been Parliament’s modus operandi for many decades, [21] in circumstances where Parliament is clearly unable to give effective scrutiny to the great volume and range of use of those powers. [22]

12. Others have provided evidence to the Committee concerning the clauses upon which I wish to comment. I can, therefore, address these clauses fairly briefly. However, before doing so, I hope it may be useful to provide a reminder of what judicial review is all about. For that, I can do no better that cite from another lecture of Tom Bingham, delivered in 1996 at King’s College:

"In a democratic society governed by the rule of law no one – literally no one – is entrusted with unfettered power. The reason is obvious: unfettered power is tyranny or despotism, both of which are inconsistent with the rule of law. So, while the complexity of modern government leads to the conferment of wide powers and important discretions on particular bodies and office-holders, all such powers are conferred for a purpose which is either explicit or implicit and no discretion is so broad as to be subject to no limit at all. Much the same is true of non-statutory prerogative powers. Whatever the source of the power in question, the judge’s task when reduced to essentials is always the same: to examine whether the power in question has been lawfully used. It will not have been lawfully used if it has been used for a purpose alien to that for which the power existed. It will not have been lawfully used if statutory conditions attaching to its exercise have not been observed. It will not have been lawfully exercised if the decision to exercise it has been swayed by irrelevant considerations or if the decision-maker has disregarded relevant considerations. It will not have been lawfully exercised if, in a situation where ordinary fairness required a certain procedure to be followed, and the decision was one calling for ordinary fairness, such a procedure has not been followed. It will not have been lawfully used if the decision to exercise the power was one which no one in his or her right mind could have made if properly advised in law. These are not new tests. They are, admittedly, judge-made tests. But they originated well before the recent boom in judicial review, at times when the judges were generally perceived to be overly respectful of government and, for that matter, excessively right-wing. The point I wish to emphasize, however, is that even where the judge finds one or other of these tests to be satisfied, and so quashes the decision under challenge, he does not thereby become the decision-maker. The judge’s only role is to decide whether the challenged decision was lawful or not: if the challenge is upheld the consequence is not that the judge makes the decision but, almost invariably, that the decision is quashed, leaving the true decision-maker at liberty to make another decision, lawfully, whether to the same effect as the earlier decision or not." [23]

Clause 50:

13. By this measure it is intended to require the court to consider whether quashing the decision of a public authority and requiring it to make a new, but lawful, decision would make no difference to the outcome. The measure is offensive. It ignores that the legitimacy of a public authority’s decision-making is not a mere question of the outcomes produced. If we are to travel any further down that particular road we will be forced to confront the proposition that Government has or appears to have no legitimacy for the many who disagree with its decisions. Those who are quick to lay claim to ‘democratic mandates’ would do well to reflect that they are appealing to a procedural legitimacy not one based on outcomes alone or at all. As others have explained, the measure invites the court into an arena properly reserved to the public authority (the question of what would and should be the decision); and invites public authorities to eschew any commitment to adopt fair processes (even those for which Parliament may have legislated) on the ground that they may just as well argue that their decision would in any case have been the same had they followed such processes. It is remarkable that the one example provided in the Ministry of Justice consultation in support of this measure concerned a case where the court found the decision-maker to have acted unlawfully by reason of apparent bias or predetermination. [24]

Clause 53(4):

14. By this measure it is intended that an intervener should ordinarily be required to pay costs of the other parties insofar as the intervention may be considered to have caused such costs. No evidence has been forthcoming from the Government to establish that interventions are the cause of significant or disproportionate costs to public authorities. The measure would extend to requiring an intervener to pay costs even where the court has accepted the intervener’s submissions and the party’s costs have been incurred in seeking to resist those. There is certainly nothing "exceptional’ (clause 53(6)) in such circumstances. The measure appears designed to deter individuals, charities or NGOs of limited means from intervening. This is despite the fact that such interventions can only be by permission of the court on the ground that the intervention will assist the court.

Clause 54(3):

15. By this measure it is intended that protective costs orders may not be made unless and until the court has granted permission for the claim to be considered. The measure would constitute a strong deterrence against claims being brought by individuals, charities or NGOs of limited means. It would provide incentive for public authorities to exaggerate that deterrent effect by their conduct pre-litigation and before a permission decision, e.g. – by obstructing any efforts to discover the true measure and merit of any defence the authority may have. [25] Moreover, if the permission and final decision are left to a rolled-up hearing, the extent of the costs-liability that the claimant may be risking would be even more prohibitive.

Conclusion:

16. I would urge that these measures not be adopted. They would clearly impede or prohibit access to judicial review on grounds of means. They risk a return to the days where this vital safeguard for the individual against the exercise of state power was available to the few, not the many. As the 800th anniversary of Magna Carta approaches, it is well to remember the imperative that "To no one will we sell, to no one deny or delay right or justice." [26] Having severely curtailed access to the courts for those of restricted means by the widespread withdrawal of legal aid, [27] these measures will further the inequality of access to justice by severely restricting the capacity of civil society to assist individuals and communities by engaging in public interest judicial review litigation.

March 2014