Criminal Justice and Courts Bill

W ritten evidence submitted by Terence Ewing (CJC 43)

REFORM OF JUDICIAL REVIEW – CRIMINAL JUSTICE AND COURTS BILL

I am writing to the Criminal Justice and Courts Bill c oncerning the Ministry of Justice’s current Criminal Justice and Court s Bill concerning the reforms relating to Judicial Review.

CLAUSE 50 " LIKELIHOOD OF SUBSTANTIALLY DIFFERENT OUTCOME FOR APPLICANT "

I am opposed to th is clause, as one of the main planks of Judicial Review is top highlight procedural impropriety and irregularities.

On a hearing for Judicial Review, the court considers the nature of any procedural irregularities that the public body has made in arriving at its final decision currently.

It then decides whether such irregularities are such that they merit the quashing of the decision or whether or not the decision can stand, notwithstanding the irregularities highlighted.

One of the tests is of course whether those irregularities are mandatory and substantive and create any condition precedent , or is merely directory.

I would contend that it is only possible to undertake this balancing exercise on the substantive hearing when all of the evidence and Skeleton Arguments have been filed, and after hearing the oral submissions of both parties. Only then would any reasonable court be in a position to form a final view.

It is wholly wrong that a court considering the grant of permission at the outset should have to consider the question of whether any irregularities should be waived through on the basis that even if they have been found to have taken place, they wouldn’t affect the outcome of the final decision.

That is a decision relating to the seriousness of the procedural defect and its affect on the procedural propriety of the public body’s decision-making process or the proceedings under review.

In effect, thi s proposed clause will invite and encourage the court to conduct the substantive Judicial Review on the permission hearing, something that was supposed to be a cheap filter mechanism to filter out completely hopeless and inarguable cases at an early stage.

This will inevitably lead to more court time being taken up not less, and more expense for the respective parties, as the matters raised will have to be considered in far more detail than at present as the current test is whether or not simply put, there is an arguable case.

In addition, the imposition of the test that the court must refuse to grant permission for Judicial Review at the permission stage in clause 50 (1) amending section 31 of the Senior Courts Act 1981 with a proposed section (2)(a) if it forms the view that the substantive decision would be unaffected at that early stage , removes completely the current judicial discretion to grant or refuse either permission or even substantive relief that has been a long standing feature of Judicial Review.

As such, this provision clearly interferes with the constitutional independence of the judiciary from the state, when the intention of Judicial Review was to operate as a safety valve and a scrutiny and accountability role over public bodies and their decisions and decision-making processes.

I would therefore urge the committee to move that clause 50 be removed from the Bill

CLAUSE 53 – INTERVENERS AND COSTS

I object to the proposal that Interveners should be considered for costs orders if any application has been made as a result of their intervention.

Interveners provide a welcome assistance in relation to Judicial Review claims, especially if they are charitable bodies such as Liberty or Justice or Howard League for Penal Reform etc.

They are able to provide independent assessment of claims and they make invaluable contributions to the outcome of these type of public interest proceedings, and this has also been the case in the former House of Lords and currently in the Supreme Court.

It should also be remembered that in the United States, there are provisions for filing of Amicus Briefs by any interested parties without leave, and I would contend that a similar right should be introduced in the UK courts.

CLAUSES 54-55 " CAPPING OF COSTS"

The current procedures for the discretionary grant of protective costs capping orders both in respect of substantive hearings and permission hearings has worked well, and operates to protect claimants with small or moderate means from high costs orders should their applications and claims fail.

I can see no reason for changing the se procedures at all as proposed , and would argue that such orders should be applicable to all applications , whether or not they involve issues concerning the wider public interest.

Indeed, regarding environmental cases, these are as the Committee will be aware, subject to the " unreasonably high " costs provisions of article 9(4) of the Aarhus Convention , which is applicable if the claim is an Aarhus case and whether or not the particular application raises general issues of environmental or planning law or not.

Therefore, it is clear that Aarhus cases are going to have to be the subject of separate provisions concerni n g the making of protective costs capping orders as is highlighted by clause 56 .

I t would therefore seem illogical therefore if a two-tier system were to operate between Aarhus Judicial Reviews and non Aarhus Judicial Reviews as is proposed .

It is impor tant that prospective claimants for Judicial Review, who act without the protection of legal aid, are given equal pro tection under Protective Costs Capping O rders at the permission stage just as much as at the substantive hearing stage.

I would also draw to the Committee’s attention the fact that for defamation and privacy claims, completely costs capping rules are set to be introduced to allow ordinary citizens greater redress in law against media organizations and publishers as a result of the Leveson Inquiry .

It therefore seems illogical therefore that the reverse should now be proposed rel ating to challenges brought by c laimants for public law Judicial Review challenges.

Finally, I would contend that the current full judicial discretion to grant Protective Costs Capping Orders should be retained for all Judicial Review proceedings, irrespective of whether they may involve wider issues of general public importance.

If such a stringent test were to be now employed, much unnecessary court time would be taken up deciding whether or not the Judicial Review claim did raise issues of general public importance, as no doubt all claimants would then seek to argue that their respective claims satisfied that criteria.

I would also contend that even if a particular claimant was unable to satisfy the general public interest test, nevertheless, many other claims might equally engage the convention rights of the claimant under schedule 1 of the Human Rights Act 1998 , and may also involve the determination of individual "civil rights and obligations" under article 6(1) of that Act, without nevertheless raising issues of general public importance to the wider community at large.

In such cases, it seems only fair and reasonable that such claimants should be able to seek the protection of Protective Costs Capping Orders as at present.

Accordingly, I would also urge the committee to reject these clauses from the current bill and leave the current provisions relating to Protective Costs Capping Orders as they currently are as they are working well.

I have no objections however to the means of the respective parties being taken into account regarding the making of Protective Costs Capping Orders.

   

April 2014

Prepared 2nd April 2014