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Judicial review reforms: anyone for ping pong?

03 December 2014
On 1 December 2014, the House of Commons voted to reverse the proposed amendments of the House of Lords to the Government's Criminal Justice and Courts Bill (the "Bill").  The Bill, which seeks to reform access to judicial review in a number of important respects, has caused considerable controversy, and has been widely criticised by stakeholders in the legal profession, charitable sector and by two cross-party parliamentary committees, since its announcement by the Secretary of State for the Ministry of Justice and Lord Chancellor, Mr Chris Grayling MP, in February 2014.

On 27 October 2014, the House of Lords, at the end of over five hours of debate that included contributions from former Supreme Court Justices, Lord Chancellors and Lord Chief Justices, among others, adopted three amendments to the Bill.  Each of these amendments has now been rejected by the House of Commons.

The House of Lords debate is available here.  The House of Commons debate, here.

Each of the House of Lords' amendments, as well as the reinstated Government proposals, is considered in turn below.

The proposals for reform and the proposed amendments

  • The first amendment in the House of Lords concerned the Government's proposed change to the so-called "materiality test", which seeks to impose a duty on the courts to refuse to grant relief on an application for judicial review where it is "highly likely" that the outcome would not have been "substantially different" if the conduct complained of had not occurred.  The Lords voted to replace the duty to refuse to grant relief with a discretion to do so.  The Commons have now voted to reinstate the duty.
  • The second Lords amendment concerned the proposed requirement that the courts must not grant permission for an application for judicial review unless the applicant has provided the court with prescribed information about the financing of the application.  Again, the Lords voted to give the courts a discretion to grant the applicant permission notwithstanding his/her failure to provide such information, and the Commons voted to strike down the amendment.
  • The third Lords amendment concerned orders for costs against intervening parties to judicial review proceedings.  The Bill proposed a requirement that, where such an application is made by a party to the proceedings other than the intervener, the courts must order that the intervener pay the costs of that other party that it considers to have been incurred as a result of the intervener’s involvement in the proceedings.  The Lords proposed an amendment giving the courts a discretion in relation to whether to order an intervener to pay the other party's costs.  The Commons rejected the amendment but adopted a Government proposal to amend the provisions so that the courts must order the intervener to pay the other party's costs if certain conditions are met.  These conditions include, for example, that the intervener has not been of significant assistance to the court, or a significant part of the intervener's evidence was not necessary for the court to consider.

The implications of the House of Commons vote

The House of Commons refusal to back down from the Government's original proposals will come as a disappointment to the Bill's many detractors, among them senior members of the judiciary, the Parliamentary Human Rights Joint Committee (who subsequently supported the proposed amendments made by the House of Lords), the House of Lords Constitution Committee, the non-governmental organisation JUSTICE and 30 other charities who produced a joint briefing in advance of the House of Lords debate.

Particular concern surrounds the restriction on the courts granting permission to an application for judicial review where it is "highly likely" that the outcome would not have been substantially different, even if the decision taken was unlawful.  This has been described as "an assault on the rule of Law" which aims to "choke off challenges to unlawful action by the Executive" (Lord Marks in the House of Lords debate).  Equally, a number of non-governmental organisations have warned of the possible "chilling effect" that the proposals on orders for costs against interveners may have on the valuable interventions of charities and other non-governmental organisations in judicial review proceedings.

House of Lords' criticism of the original proposals

During the House of Lords debate, the majority in the House of Lords made it clear that they believed that the proposed reforms would, per Lord Pannick, "damage judicial review for no good reason" and that the Government's proposed Bill "ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies".

Lord Woolf, former Lord Chief Justice between 2000 and 2005, emphasised that judicial review is a remedy of last resort that is not available where there is an alternate remedy, for example by statute.  His Lordship stressed the importance of judicial review in the UK's constitutional settlement as a "residual remedy of citizens to deal with the fear of unlawful action by the [Government]".

Lord Irvine, former Lord Chancellor between 1997 and 2003, made a robust defence of the role played by judicial review in the House of Lords debate, stating that it is "a vital component in our separation of powers" that is "indispensable in a democracy proud to be governed by the rule of law".  He went on to state that judicial review "ensures that public bodies act according to law. They cannot be above the law".  His Lordship also noted that, although Government Ministers will often be frustrated if their decisions are challenged or quashed, this is an intrinsic aspect of government subject to the rule of law:

A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law.

Government's justification for the proposals

Mr Grayling, opening the debate in the House of Commons, justified the proposals in the following terms:

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.

Mr Grayling stated that he took his responsibility as Lord Chancellor to uphold the rule of law "very seriously", but that he did not believe that the current use of judicial review was consistent with the rule of law.  Instead, he outlined the Government's view that judicial review has become a tool to campaign against, delay and challenge public sector decision-making, and that it is being misused in this way with unwelcome regularity.  In the Secretary of State's own words:

The Bill will not stop organisations being judicially reviewed where they are at fault.  It does not stop organisations being judicially reviewed for constant or serious underperformance or failure to fulfil their duties.  What it stops is judicial review on technicalities.

There appears to be competing visions of the constitutional role played by judicial review on each side of the debate.  The distance between the Government and the Bill's detractors was well illustrated by the intervention of Frank Dobson MP in the Commons debate, when he said:

The right honourable Gentlemen talks of technicalities, but the law is full of technicalities – that is all it is.  He says that Ministers and officials are frightened of judicial review, and so they should be.  The pressure on them is to comply with laws and regulations that we have passed.

What next for the proposed reforms

The "ping pong" stage of the UK legislative process is in full swing, with the Bill now bouncing back to the House of Lords for reconsideration.  The two sides of the debate will seek to reconcile their respective positions until one side concedes.  In light of the significant interest generated by the debate so far, and the proposals' implications for fundamental constitutional principles such as the separation of powers and the rule of law, Parliament should expect heightened scrutiny of the proposals.

Lord Phillips' contribution to the Lords debate is perhaps an indication of what lies ahead for the Bill.  His Lordship commented that "if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them".  It seems unlikely that the Bill will return to the Commons unscathed.  The ping pong game is not yet over.

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