This Report follows on from our previous Report into the implications for access to justice of the Government's proposed reforms to legal aid, and assesses those implications with regard to the Government's proposals to reform judicial review.
Restrictions on access to justice are in principle capable of justification; discouraging weak applications and reducing unnecessary delay and expense, for example are clearly legitimate aims, and, where evidence shows a need for change exists, proportionate restrictions which serve those aims will be justifiable.
In our view, the Government's proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice which raises issues which should be considered by a number of parliamentary committees. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.
We recognise that there has been a substantial increase recently in the number of judicial reviews but this has been largely because of the predictable and foreseen increase in the number of immigration cases being pursued by way of judicial review. Such cases have been transferred from the High Court to the Upper Tribunal since November 2013 and no assessment has been made since of whether the number of judicial review cases is still increasing. The number of judicial reviews has remained remarkably steady when the increase in the number of immigration judicial reviews is disregarded. We therefore do not consider the Government to have demonstrated by clear evidence that non-immigration related judicial review has "expanded massively" in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.
Procedural defects and substantive outcomes
We accept that it is a legitimate and justifiable restriction on the right of access to court for courts to refuse permission or a remedy in cases where it is inevitable that a procedural defect in the decision-making process would have made no substantive difference to the outcome, as they do under the current law. However, lowering the threshold to one of high likelihood gives rise to the risk of unlawful administrative action going unremedied and therefore risks incompatibility with the right of practical and effective access to court, which the European Court of Human Rights recognises as an inherent part of the rule of law.
We are not persuaded that there needs to be any change to the way in which courts currently exercise their discretion to consider, at both the permission and the remedy stage, whether a procedural flaw in decision-making would have made any substantive difference to the outcome. We therefore recommend that clause 52 be deleted from the Criminal Justice and Courts Bill.
However, if Parliament prefers to retain clause 52, we recommend that it be amended so as to reflect the current approach of the courts. There is a case to be made for such amendments in order to clarify the approach which the courts currently take to the issue of whether the correction of a procedural defect would make any difference to the outcome. The amendments we recommend would make clear that the High Court and the Upper Tribunal have the discretion to withhold both permission and a remedy if they are satisfied that the outcome for the applicant would inevitably have been no different even if the procedural defect complained of had not occurred.
Legal aid for judicial review cases
We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. Instead it constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking.
We regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective access to justice. This should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary.
We recommend that the Government withdraw the regulations it has laid to give effect to its proposal, and introduce instead an amendment to the Criminal Justice and Courts Bill to provide Parliament a proper opportunity to consider and debate in detail this controversial measure with such serious implications for effective access to the courts to hold the Government to account.
Interveners and costs
We are concerned that the Bill will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties' costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention, and recommend that the relevant sub-clauses be removed in order to restore the judicial discretion which currently exists.
Capping of costs ("Protective costs orders")
Restricting the availability of costs capping orders to cases in which permission to proceed has already been granted by the court is too great a restriction and will undermine effective access to justice. We recommend that the court should have the power to make a costs capping order at any stage of judicial review proceedings, including at the initial stage of applying for permission. We also recommend that the provision for cross-capping (which limits a defendant's liability for the claimant's costs) should be a presumption not a duty, which would preserve some judicial discretion in deciding the appropriate costs order to make in the circumstances of the particular case.
For the Lord Chancellor to have the power to change the matters to which the court must have regard when deciding whether proceedings are public interest proceedings has serious implications for the separation of powers between the Executive and the judiciary and we recommend that the Bill should be amended to remove that power from the Lord Chancellor.
Alternatives to the Government's judicial review reforms
We welcome the Bingham Centre Report on streamlining judicial review in a manner consistent with the rule of law as an important contribution to the debate about possible reform of judicial review. In our view the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms than those it has itself proposed which would make the process of judicial review more expeditious and therefore cheaper without compromising effective access to justice.
We recommend that the Government should invite the Civil Procedure Rule Committee to amend the Civil Procedure Rules so that the costs of oral permission hearings in judicial review proceedings should be recoverable from whichever is the unsuccessful party at that hearing, including the defendant, which would be a more even-handed way of reducing unnecessary cost and delay.
Judicial review and the Public Sector Equality Duty
We welcome the unequivocal confirmation from the Chair of the Independent Review of the Public Sector Equality Duty ("PSED") that in his view the PSED should continue to be legally enforceable. It is clear to us that the legal enforceability of the PSED is crucial in ensuring the implementation of, and compliance with, equality law by public authorities. Quicker and more cost-effective mechanisms may be possible, but should retain the ultimate legal enforceability of the duty by judicial review, rather than be an alternative to it. The Government's overall objectives of reducing cost and delay in this area could be taken forward by the Equality and Human Rights Commission as part of their ongoing work to develop a statutory code of practice and further guidance on the PSED.
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