Government rejects House of Lords amendments on judicial review

Amendments made by the House of Lords relating to reform of judicial review in the Criminal Justice and Courts Bill have been rejected by the government.

A five hour debate in the House of Lords in October resulted in a heavy defeat for the government's plans to limit the ability to challenge public decisions via "ill-founded" judicial review proceedings. But last night the tables were turned as an almost empty House of Commons debated the removal the Lord's amendments and approved a concession offered by the justice secretary, Chris Grayling.

Under the Lord Chancellor's amendment, interveners in judicial review would be made liable for costs if evidence and representations they provide are not found to be 'of significant assistance' to the court. Interveners would also be liable if they were judged to have behaved 'unreasonably' and if a significant amount of their evidence is on matters that should not have been considered by the court.

'Restoring common sense'

Grayling told the Commons: "As Lord Chancellor I take my responsibility to uphold the rule of law very seriously, but I do not believe that the way in which it has evolved in relation to the current use of judicial review is consistent with or necessary to uphold the rule of law, and I believe the time has clearly come to set some limits to prevent misuse.

"Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in government and parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and is why reform is necessary."

He continued: "Without undermining the essential core of judicial review, we need to restore common sense to the way in which the judicial review system works."

Shadow justice minister, Andy Slaughter attacked the government's Bill saying that it was "against the clear voice of the experts, which says that this attack on judicial review is a constitutional provocation, we have the childish statements from the Lord Chancellor, who says that judicial review is a left-wing conspiracy.

"He should tell that to those who are reliant on the independent living fund, the Gurkhas and the victims of care home abuse, or indeed the Countryside Alliance and Stop HS2, all of which are successful challengers of his government's arbitrary exercise of power."

Despite hopes that rebels might embarrass the government, only Conservative MPs Geoffrey Cox and Zac Goldsmith opposed the amendment with Andrew Turner abstaining. The only Liberal Democrat MP to vote against the government was Sarah Teather.

These too few rebels were joined by newly elected UKIP representatives Douglas Carswell and Mark Reckless, but even with opposition from the Labour party the government won the vote with margins of 66, 36 and 33 respectively.

Responding to the news, Dinah Rose QC tweeted: "Lib Dems voted en masse with government to weaken the rule of law last night. Beneath contempt, no principle or purpose. There are no words."

While solicitor and journalist, David Allen Green, added: "So far have the Lib Dems been absorbed into the Coalition that more UKIP MPs votes against judicial review restrictions than Lib Dem MPs. If Liberal Democrat MPs are voting to restrict access to Judicial Review, what exactly is the Liberal Democrat party for?"

Failed lobbying

The outcome of the parliamentary vote will come as a blow to the Law Society, Bar Council and Chartered Institute of Legal Executives who had joined forces to lobby MPs to support the Lord's amendments.

Prior to last night's vote, Nicholas Lavender QC, chairman of the Bar Council, said: "Peers have made some very sensible amendments to address our concerns. The fact is that those in power sometimes get it wrong, and judicial review is an important check on unlawful action by the government or other public bodies."

While Law Society president, Andrew Caplen, commented: "This could rule out judicial review for some of the weakest and most vulnerable in society and would make it easier for public bodies to act without regard for the law."

In the run up to the debate, a spokesperson for the Bar Council said: "It will still be a gamble for charities and NGOs to intervene in judicial review cases. The government amendments do not address the concern that charities and NGOs, who try to assist the court at their own expense and only ever with the express permission of the judge, will feel a 'chilling effect'. These proposed changes mean interveners will have to correctly second guess whether or not a judge will agree their intervention has been of 'significant assistance' or else face prohibitive legal costs."

They continued: "It is not fair to expect interveners to hypothesise on what a retrospective judgment, to be made in the future, might say. If judges suspect an intervention will not be useful, they already have the power to say, 'No thanks.' Members of the judiciary have often said how much they welcome the expertise offered by interveners. The government amendment is trying to solve a problem which does not exist."

Meanwhile, a group of NGOs, including Age UK, INQUEST, JUSTICE, Liberty, Mencap, Mind, the Howard League, the Child Poverty Action Group and Shelter, expressed concern that the effect of the proposals will deter legitimate challenge, limit judges' discretion and shield public agencies from legitimate oversight.

Andrea Coomber, director of JUSTICE, said: "Judicial review is one of the very few means we can challenge public bodies and government departments which act unlawfully. We should all be watchdogs when the government tries to rewrite the rules in its favour. Changes made in the House of Lords would leave the government's reforms intact, but preserve the discretion of the court to do justice in the public interest in individual cases.

"Government - big or small - will be the defendant of these claims and the greatest beneficiary of any changes. When a council or a hospital gets the law wrong the only option for normal people should not be the local MP's constituency office. "

Sara Ogilvie, policy officer at Liberty, added: "These changes will make it vastly more difficult for the most vulnerable in our country to challenge the most powerful. Should the Government of the world's oldest unbroken democracy really be slamming courtroom doors shut in the face of ordinary people?"

While Ali Fiddy, the head of legal at Mind, commented: "The Criminal Justice and Courts Bill 2014 proposes significant restrictions on the ability of charities like Mind to intervene in cases that have wider implications for their beneficiaries. These cases are important because they test, develop and clarify the law, for all our benefit. If this Bill is passed, it is likely that opportunities to do this will be lost."

Concluding the joint statement, Shelter's principal solicitor, John Gallagher, added: "At a time of increasing pressure on local authorities it is vital not to make it even harder for homeless families to challenge decisions that are unlawful. It is equally important that charities and organisations are not deterred from intervening in cases where their specialist knowledge can have a major impact."

The Bill is currently in its 'ping pong' stage, with the two Houses seeking to resolve their differences over their respective versions of the proposed legislation. Peers could decide to reject the government's latest amendments to the Bill when it returns to the Lords on 9 December.

John van der Luit-Drummond is legal reporter for Solicitors Journal