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Chris Grayling: one job too many?

30 April 2014
The Joint Committee of the House of Lords and House of Commons on Human Rights today published its report entitled, "The implications for access to justice of the Government's proposals to reform judicial review" (the "Report").

The Report accepts that restrictions on access to justice are, in principle, capable of justification.  However, noting that "judicial review is one of the most important means by which the Government and other public bodies are held legally accountable for the lawfulness of their decisions and actions, including their compatibility with the requirements of human rights law", the Report also contains a number of significant criticisms of the Government's current proposals in relation to judicial review claims, as reflected in the Criminal Justice and Courts Bill.

Many of these criticisms have already been made extensively elsewhere, but are worth outlining in brief.

The Report expresses concern about the Government's rationale and evidence base for the proposals on judicial review, in particular finding that, once the expected increase resulting from changes to appeal rights in immigation claims is ignored, the number of judicial reviews has not increased anything like as much as the Government has suggested.

The Report also contains criticism of the plan to lower the probability threshold at the permission stage, and changes to reduce judicial discretion.  For these reasons, the Report recommends that clause 52 is removed but, if Parliament prefers to retain it, suggests a number of changes that are a better reflection of the current approach taken by the courts.

The Report also finds that the proposal to make payment for pre-permission work conditional on permission being granted is not justified by the evidence and constitutes a potentially serious interference with access to justice.   The Report also criticises the Government for introducing changes to legal aid through the Civil Legal Aid (Remuneration) Regulations, rather than through primary legislation, capable of being debated in Parliament, and suggests that the Regulations are withdrawn and the changes put into the Criminal Justice and Courts Bill instead.

The Joint Committee also expressed concerns about the changes in relation to interveners, whom it considers to play an important role in judicial review proceedings, as well as the proposals to reduce the availability of protective costs orders.

On the subject of protective costs orders, the Committee also concluded that:

"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".

The Report goes on to suggest that:

"the Lord Chancellor's energetic pursuit of reforms which place direct limits on the ability of the courts to hold the executive to account is unavoidably problematic from the point of view of the rule of law",

and recommends that the time is approaching for a review of the effect of combining the roles of Secretary of State for Justice and Lord Chancellor in one person, and for the restructuring of departmental responsibilities.

While the Report notes that Chris Grayling disagreed with these concerns, the raising of this question by the Joint Committee in such robust terms may mean that it is something that the Government finds increasingly difficult to ignore.

 

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