The Future of Judicial Review
Speech to the Human Rights Lawyers' Association 26 June 2014
It’s hardly surprising that politicians tend not to like having the lawfulness of their decisions questioned by the Courts. Like any frustrated litigant, when a Minister loses a judicial review case he or she is more likely to blame the judge than their own decision-making, whereas when they win, they’re quick to criticise the Claimant for bringing the case in the first place.
We have experience of this at the Child Poverty Action Group. When the High Court dismissed our challenge to the Government’s cap on housing benefit, for which we’d been granted a cost protection order and permission on the basis that the case was arguable and raised issues of public importance, Work and Pensions Secretary Iain Duncan Smith accused us of “ridiculous … irresponsible behaviour (and) an ill-judged PR stunt”. But when, two years later, in a different case, the Court of Appeal found that the same Department’s sanctions regime was unlawful on several grounds, he was quick to declare the judgment “utter madness” and that he had “no intention of complying” with it. You can’t win.
There is nothing new in this. Indeed, such criticism is a sign of a healthy democratic system where the rule of law is respected – if judges always did what ministers wanted we would all be worried.
But in recent years the rhetoric has been ratcheted up to a new level. Apparently, we are at “war” with judicial review. David Cameron has evoked the spirit of the 1940s and declared judicial review our principal enemy. Justice Minister Chris Grayling has accused charities of using judicial review as a “human shield”.
And the tough words have been matched by deeds. The last two years have seen no fewer than three consultation papers each proposing more sweeping changes to judicial review than the last: "Judicial Review: Proposals for Reform" (December 2012), "Transforming Legal Aid” (April 2013); “Judicial Review: Proposals for Further Reform” (September 2013). Court fees have been hiked, legal aid fees slashed, Claimants’ lawyers placed “on risk”, time limits reduced and cases certified as “totally without merit”.
Now the Criminal Justice and Courts Bill, which will make public interest claims prohibitively expensive for all but the wealthiest of Claimants and interveners, is being rushed through Parliament so as to be law before the summer.
What is the Government’s casus belli? What is wrong with the current system that so urgently needs reform?
As sometimes happens with wars, the pretext for action is constantly shifting.
First, we heard that the number of judicial reviews had “expanded massively”, and that too many claims have little or no prospects of success. Judicial review, we were told, is a "growth industry". These unmeritorious claims were blamed for a host of ills: damaging the economy, delaying infrastructure projects and reforms, tying up civil servants in costly red tape and pushing up the legal aid bill to the detriment of the hardworking taxpayer. Something had to be done.
The trouble is, the Ministry of Justice’s own figures don’t back up the story. As Varda Bondy and Prof. Maurice Sunkin have ably shown, leaving aside immigration cases, which have now been transferred to the Upper Tribunal, the number of cases has remained fairly constant over the last 15 years. That in itself is surprising, given that the marked increase in the number of Government decisions and the volume of legislation over the same period.
And it was soon pointed out that, when you take into account cases that are settled or withdrawn because the Defendant changes its decision, the success rate at the permission stage is actually quite high. As to those claims that do fail, that’s precisely what the permission stage is supposed to do – filter out unmeritorious claims.
When the evidence was put under scrutiny, the Ministry of Justice’s first Consultation paper began to look like a bit of a dodgy dossier.
So the Government changed its target. Those “unmeritorious” claimants, who were supposedly clogging up the corridors of the Royal Courts of Justice, were no longer the problem. The real problem is the successful claims. The Ministry’s third consultation paper, “Judicial Review: Proposals for Further Reform”, pointed the finger at “NGO’s, charities, pressure groups and faith organisations”. Never mind that the paper could only find about 50 claims issued by such groups per year. Such claims “tend to be relatively successful compared to other judicial reviews” and this “tips the balance too far”. It “frustrates proper decision-making” (presumably “proper” in this context meaning unlawful). “Parliament and the elected Government”, the paper declared, “are best placed to determine what is in the public interest”, not the Courts: Judicial Review: Proposals for Further Reform”, paragraphs 79-81.
That last sentence is revealing, because it fundamentally misses the point of judicial review. “Parliament and the elected Government” are not one entity. The role of the Courts is to ensure that the Government (which is not directly elected) acts in accordance with the law, as laid down by Parliament (which is). The public interest involved is in upholding the rule of law.
The product of this latest consultation is Part 4 of the Criminal Justice and Courts Bill. In the Ministry of Justice’s own words, Part 4 is a “tough package of reform to financial provisions in respect of judicial review to deter weak claims from being brought or pursued.” In other words, its aim is to make judicial review prohibitively expensive.
But the Bill doesn’t just deter weak claims – it deters anyone who doesn’t have considerable means they are willing to put at risk. By banning courts from making protective costs orders until after the permission stage, the Bill will expose any concerned group or individual acting in the public interest to a potential liability of thousands of pounds in Defendant’s costs. If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too. The Bill also exposes interveners, who are usually working pro bono and in the public interest in order to assist the Court, to a mandatory costs risk regardless of the outcome of the case.
The practical effect of the combined reforms will be to exclude all but the wealthiest individuals and companies from involvement in judicial review proceedings.
What is this “war” on judicial review really about? Outside of the consultation papers, Ministers are clear that their concerns are political. Chris Grayling complains in the Mail on Sunday that judicial review has become a “promotional tool for countless left-wing campaigners”. But judicial review is inherently apolitical – the issue for the judges is whether a decision is lawful, not whether it is “left” or “right”. Judicial review is not just about control orders, Guantanamo Bay, budget cuts and badgers. One only needs to think of the successful challenges to trade union action against apartheid, or the GLC’s “fair’s fare” policy, or the two long-running but ultimately unsuccessful challenges to the fox hunting ban: Jackson & Ors v. Her Majesty's Attorney General  UKHL 56 and R (Countryside Alliance) v Attorney General & Anor  UKHL 52
Yes, there is a need for reform, but to make judicial review more not less accessible for claimants. That’s not just my opinion, that was the conclusion of Lord Justice Jackson after he conducted a thorough and comprehensive review of the civil cost rules. He recommended that the cost risks be shifted in favour of claimants, because: “It is not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved. As the permission stage is “an effective filter to weed out unmeritorious cases”, he pointed out, there is little need to use costs “to deter frivolous claims”.
There’s nothing new about the Government wanting to restrict judicial review. In 2002, Tony Blair’s Government tabled legislation ousting judicial review in immigration and asylum cases.There was such an outcry from judges and civil society that the clause was dropped before the second reading in the House of Lords. The Criminal Justice and Courts Bill gets its second reading on 30th June 2014. Let’s hope the Government will again take the time to reconsider.