Junior practitioners must lobby against part 4 of the Criminal Justice and Courts Bill

Judicial review allows individuals, charities
and companies to seek
a review by the courts of the lawfulness of public authority decisions or actions.
It therefore gives practical
effect to the fundamental, constitutional principle that the state, like all its citizens,
is subject to the rule of law.

The government, however, is attempting to restrict the use of judicial review. Part 4 of the Criminal Justice and Courts Bill, which is currently working its way through parliament, includes provisions that would limit protective costs orders, subject interveners and third party supporters of litigation to greater costs risks, and require courts to refuse relief to successful claimants where it is ‘highly likely’ that the outcome would not have been substantially different if the state defendant had not acted unlawfully.

The proposed reforms have prompted resistance from all branches of the profession,
as well as many charities and non-governmental organisations (NGOs). The Law Society, Bar Council and CILEx are united in opposition to the Bill, and a joint briefing released by 35 charities and NGOs stated that the “proposals are designed to increase the financial risk of public interest litigation to such a degree that they will operate to insulate defendants against challenge”.

My firm has worked with many charities, including Mencap, Inquest and the National Autistic Society, to protect the rights of some of the most vulnerable members of society. The reforms proposed within part 4 of the
Bill would undoubtedly create uncertainty regarding the costs risks to charities when they assist the court by providing specialist evidence, to the detriment of good decision-making.

The House of Lords passed amendments to the Bill on
27 October which would ensure that judges retain the discretion they currently have to make costs orders and decide when
to apply the proposed ‘highly likely’ test for refusing relief.
However, these amendments were reversed by the House
of Commons on 1 December. During the Commons debate, the Lord Chancellor, Chris Grayling, spoke of the “need
to restore common sense” to judicial review and decried “pressure groups trying to
use judicial review to delay decisions, to avoid spending reductions, and to generate publicity for their own cause”.

The Lord Chancellor’s comments betray a misunderstanding of the vital purpose of judicial review in allowing judicial scrutiny of administrative action. It also transpired that Grayling had misled the House of Commons by incorrectly stating that the requirement to refuse relief when it is ‘highly likely’ that the outcome would not have been substantially different but
for the unlawful conduct was subject to an exceptional circumstances clause.

The Bill returned to the
House of Lords on 9 December and peers reinstated the amendments before sending it back to the House of Commons for further debate. We, the Young Legal Aid Lawyers, have lobbied MPs and peers during the Bill’s passage through parliament, and will continue to try to persuade parliamentarians
to improve the Bill.

In the context of severe cuts to legal aid and the ongoing debate over repealing the Human Rights Act, it is difficult to escape the conclusion that the present government is determined to reduce the ability of citizens to challenge actions or decisions
of the state. We are witnessing a concerted, incremental attack on access to justice and the rule of law. As young lawyers, this should concern us all. SJ

Oliver Carter is a committee member of Young Legal Aid Lawyers and a paralegal at Irwin Mitchell