Criminal Justice and Courts Bill

Written evidence submitted by Mr Jamie Grace (CJC 38)

(LL.B (Hons) LL.M PG Cert LTHE FHEA, Senior Lecturer in Law, Sheffield Hallam University)

Dear Sir/Madam,

RE: Clause 50 - Criminal Justice and Courts Bill 2013-14

From my perspective as an active researcher and teacher in the field of judicial review and administrative law, I urge caution in relation to the wording, effect and purpose of Cl. 50 of the Criminal Justice and Courts Bill 2013-14 ('the Bill').

For your information about my professional and academic interests and expertise, I have attached an Appendix containing my CV to this submission of written evidence.

Clause 50 of the Bill introduces a test as to the 'likelihood of [a] substantially different outcome for [the] applicant' by way of amending section 31 of the Senior Courts Act 1981 (applications for judicial review), to the effect that the High Court must refuse to grant relief on an application for judicial review, "if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred", or, in respect of deciding whether to grant leave for an application for judicial review, must refuse to grant such leave if so requested by the defendant public body, and it is in the view of the High Court that it is "highly likely that the outcome for the applicant would not have been substantially different", respectively.

This proposed amendment raises the awkward question of what will occur when the High Court is faced with a strong claim for judicial review - but a strong claim which would call for the courts to undertake a close scrutiny of a decision or policy with a high degree of political sensitivity. We have already seen a principle of judicial deference to political and democratic authority develop in the current function and spirit of judicial review, and a reluctance from the judiciary to determine as justiciable crucial legal issues in particular circumstances, relating to what is known as the 'political questions' doctrine.

So in essence, and for example, if there is a possible, particular political constraint on a judge from issuing an order for a remedy of some kind, and the proposed reform in Clause 50 of the Bill were to be enacted, then however important the case as an exercise in analysing the constitutional status of the legal rights and duties concerned, if it is very likely a remedy is not going to be offered due to judicial deference, and because of 'high politics', then the case could not be heard at all.

This is an overly narrow construction of the constitutional purpose of judicial review, from a political perspective - but also, this is a statutory reform, which, if enacted, would prevent certain individual claimants to air their understandable (and constitutionally significant) grievances in the courts, though the vital process of judicial review. This is a real concern in relation to the notions of both open justice as a constitutional value and component of the rule of law, and the right to a fair hearing in the determination of civil rights under Article 6 of the European Convention on Human Rights.

Our development in the United Kingdom of a constitutional principle of judicial deference means that in some cases in the arena of judicial review, it is already permissible for judges to find (perhaps even only minor) legal fault, say, on the part of a government minister, as in the case of R (Hurley and Moore) v Secretary of State for Business Innovation & Skills [2012] EWHC 201 (Admin), without then issuing a remedy other than a declaration that what was done (or not done, as the case may be) was unlawful conduct on the part of that government minister. This could be because, as in Hurley and Moore, that to otherwise offer a prerogative remedy such as a quashing order to a claimant whose arguments are persuasive, might create 'administrative chaos' (Hurley and Moore at para. 99). In the case of Hurley & Moore, this was because the Secretary of State for Business, Innovation and Skills had not correctly had 'due regard' to all potential equality issues over the design of a potential new fees system for Higher Education, as would now be required under the general 'public sector equality duty' under S.149 of the Equality Act 2010 - but as Elias LJ noted, putting it mildly, there would have been "significant economic consequences" (para. 99) in undoing the work of the Secretary of State through a quashing order aimed at removing the offending regulations creating the new fees system.

So there are currently times when judicial review case are extremely politically significant, and we are all the better off as part of a democratic society for hearing about what more a government minister, for example, could have done to better or more comprehensively uphold the legal obligations placed on them by Parliament - even, perhaps particularly so, in cases where the judiciary already see fit to use their discretion not to issue an order for a remedy of some kind that would greatly disrupt the ongoing work of government.

This is a delicately, and rather beautifully, balanced and nuanced constitutional arrangement. Clause 50 of the Bill would disrupt this clever mechanism to our detriment as a society, I feel. Judges would then, if the Clause was enacted, in some admittedly infrequent cases, not only have to consider claims with particularly sensitive and important political ramifications but would have to do this at a very early stage in the judicial process - so early, in fact, that we would not benefit from the transparency that comes from the judicial scrutiny of the work of government in judgments of the High Court that do not result in a remedy, and thus no 'substantially different outcome for the claimant', but result in a better understanding of our governance for each citizen in this nation as a whole.

April 2014 

Prepared 2nd April 2014