Criminal Justice and Courts Bill will have a ‘chilling effect’ on those seeking justice

The Bar Council, Law Society and Chartered Institute of Legal Executives (CILEx) have together called on Peers to urgently amend part 4 of the Criminal Justice and Courts Bill, claiming it is an attack on judicial review.

The profession’s regulators argue the Bill will have a ‘chilling effect’ on individuals and organisations seeking justice.

According to the regulators, part 4 of the Criminal Justice and Courts Bill will restrict the use of protective costs orders (PCOs) consequently limiting judicial review to the wealthy and expose those not party to a judicial review, including friends, relatives and associates of claimants, to the financial risk of paying costs.

The regulators also argue the Bill will discourage ‘helpful’ contributions made by charities, NGOs and others by making them liable for costs, and, furthermore, it will ultimately shield public bodies from proper scrutiny when they act unlawfully.

Chairman of the Bar Council, Nicholas Lavender QC, said: “If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother’s care home or relocate your child’s school, what would you do?”

He continued: “Judicial review is an important tool to stop dodgy decision-making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power.”

President of the Law Society, Andrew Caplen, added: “This [Bill] would restrict access to 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 some of the most sensitive areas of our lives.”

Costs orders

At present, PCOs can be used to limit the level of legal costs a claimant must pay as the costs risk associated with litigation can be a significant deterrent.

However, under the Bill judges will be stopped from granting PCOs until permission for judicial review is granted, a stage that requires intensive work by lawyers and which incurs costs.

The regulators state only a handful of PCOs are granted by judges each year and only in cases that are in the public interest. Yet, the government has implied this gives claimants a ‘free ride’.

President of CILEx, Frances Edwards, commented: “This means judicial review will only be available to risk takers with deep pockets. Access to justice should be about the merits of your case, not the size of your wallet.

“The Bill would also allow a government minister to decide what matters are in the ‘public interest’, rather than independent judges. This would enable future governments to keep certain challengers at arm’s length. That is like letting the title holder choose their challenger.”

Expert opinion

The proposals in the Bill will also force judges to consider making cost orders against parties who might be able to financially assist help the claimant. This would include friends, family and community members.

Lavender QC, said: “Encouraging judges to force your friends and family to fork out when you challenge a public authority will be a massive disincentive to those seeking redress from government wrong-doing.”

Friends and family are not the only ones who could potentially fall foul of the Bill. Charities, NGOs and even government departments often contribute expert advice and guidance in cases, which is essential to the law-making process. However, the Bill will force judges to make these interveners pay costs. This has led to worries with the legal profession that the Bill would deter experts from providing the kind of assistance that courts find valuable.

Caplen commented: “Expert organisations, including charities and NGOs do not wade in to judicial reviews for fun. The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions. Making interveners liable will have a chilling effect on organisations who do this important work at their own expense.”

Public interest

With judicial review often used to clarify important points of law in the public interest, the regulators are concerned the Bill will force judges to reject challenges even in cases where it is ‘highly likely’ there would be no difference.

Commenting on these proposals, Edwards said: “Raising the no-difference threshold means an authority could escape legal challenge even when they’ve obviously behaved improperly. It will mean a judge second guessing the likelihood of a different outcome before hearing the issues in the case. That would increase the volume of evidence at the permission stage, adding to costs and delay.”

With Part 4 of the Bill expected to reach the House of Lords’ report stage on 22 and 27 October, the chairman of the Bar Council has called on all Peers to support amendments tabled by Lord Pannick, Lord Woolf, Lord Carlile, and Lord Beecham.

“These amendments will make sure that the legality of government decisions can be challenged by anyone with a legitimate case, that the fight will be fairly fought, and that it will be refereed by judges, not government Ministers,” said Lavender QC.

Charity intervention

In addition to the lobbying pressure being asserted by regulators, a group of 20 charitable organisations representing children and older people, people with disabilities, bereaved families and victims of torture; and organisations working on issues as diverse as housing, fair treatment at work and in healthcare, freedom of expression and privacy, have together signed a joint NGO briefing which calls on Peers to vote against the Bill.

Age UK, Mind, Shelter, English PEN, INQUEST, Child Poverty Action Group, Public Concern at Work, the Howard League for Penal Reform, the Public Law Project, Liberty and JUSTICE are all in support of amendments to the Bill designed to preserve the discretion of the court and ensure that judicial review remains open to individuals without means and those who litigate in the public interest.

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.

“Pressing ahead with these changes will shield government – big and small – from scrutiny, will deprive individuals without means of an often much-needed remedy and will undermine the rule of law. MPs and Peers must act now. The ballot box should not be the only realistic remedy for unlawful public action.”

Government response

The justice secretary, Chris Grayling, has previously said that “leftwing” campaigners have exploited the process of judicial review to frustrate government initiatives they disagreed with. The Lord Chancellor also suggested that this has generated a “lucrative industry” for lawyers.

Responding to the recent criticism, justice minister, Shailesh Vara, commented: “We have seen a huge surge in judicial review cases in recent years. Many judicial reviews are weak or ill-founded and can be expensive and unnecessarily time-consuming.

“We want to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and is not abused by people to cause delays or to generate publicity for themselves or their organisations at the expense of ordinary taxpayers.”

In the year 2011/12 only 515 out of 4,074 (13 per cent) of cases where legal aid was granted for an actual or prospective judicial review, were judged to have been without merit. In all other cases either permission for judicial review was granted, or the case was likely settled with benefit to the claimant.

This article was first published in the Solicitors Journal on 24 October 2014 and is reproduced with kind permission.