Evidence supporting reforms to judicial review is "weak", say MPs and peers

The evidential base for the Government’s controversial reforms to judicial review is weak, MPs and peers have said.

In a report, the Joint Committee on Human Rights said restrictions on access to justice were, in principle, capable of justification: “discouraging weak applications and reducing unnecessary delay and expense, for example are clearly legitimate aims, and, where evidence shows a need for change exists, proportionate restrictions which serve those aims will be justifiable”.

The committee said it recognised that there had been a substantial increase recently in the number of judicial reviews. However, the report pointed out that this had been “largely because of the predictable and foreseen increase in the number of immigration cases being pursued by way of judicial review”.

It added: “Such cases have been transferred from the High Court to the Upper Tribunal since November 2013 and no assessment has been made since of whether the number of judicial review cases is still increasing. The number of judicial reviews has remained remarkably steady when the increase in the number of immigration judicial reviews is disregarded.

“We therefore do not consider the Government to have demonstrated by clear evidence that non-immigration related judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.”

The JCHR Report, The implications for access to justice of the Government’s proposals to reform judicial review, can be viewed here.

The MPs and peers claimed that the reforms to judicial review exposed “the conflict of interest inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”, raising issues that should be considered by a number of Parliamentary committees.

The committee added that the time was approaching for there to be a “thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice”.

The JCHR report also said:

• It was a legitimate and justifiable restriction on the right of access to court for courts to refuse permission or a remedy in cases where it was inevitable that a procedural defect in the decision-making process would have made no substantive difference to the outcome, as they do under the current law. “However, lowering the threshold to one of high likelihood gives rise to the risk of unlawful administrative action going unremedied and therefore risks incompatibility with the right of practical and effective access to court, which the European Court of Human Rights recognises as an inherent part of the rule of law.”
• The committee was not persuaded that there needed to be any change to the way in which courts currently exercised their discretion to consider, at both the permission and the remedy stage, whether a procedural flaw in decision-making would have made any substantive difference to the outcome. The JCHR therefore recommended that clause 52 be deleted from the Criminal Justice and Courts Bill.
• However, if Parliament preferred to retain clause 52, it recommended that it be amended so as to reflect the current approach of the courts. “There is a case to be made for such amendments in order to clarify the approach which the courts currently take to the issue of whether the correction of a procedural defect would make any difference to the outcome. The amendments we recommend would make clear that the High Court and the Upper Tribunal have the discretion to withhold both permission and a remedy if they are satisfied that the outcome for the applicant would inevitably have been no different even if the procedural defect complained of had not occurred.”
• The committee did not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, was justified by the evidence. “Instead it constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking.” The JCHR attacked the Government’s use of a negative resolution statutory instrument to bring forward this measure, saying it should have been brought forward in primary legislation. It called on the Government to withdraw the regulations.
• The committee was concerned that the Bill would introduce a significant deterrent to interventions in judicial review cases, “because of the risk of liability for other parties' costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”. It recommended that the relevant sub-clauses be removed in order to restore the judicial discretion which currently exists.
• Restricting the availability of costs capping orders to cases in which permission to proceed had already been granted by the court was too great a restriction and would undermine effective access to justice. The committee recommended that the court should have the power to make a costs capping order at any stage of judicial review proceedings, including at the initial stage of applying for permission. The JCHR also recommended that the provision for cross-capping should be a presumption not a duty, “which would preserve some judicial discretion in deciding the appropriate costs order to make in the circumstances of the particular case”.
• 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 had “serious implications for the separation of powers between the Executive and the judiciary”. The committee recommended that the Bill should be amended to remove that power from the Lord Chancellor.

On possible alternatives to the Government’s reforms, the JCHR said it welcomed a report published by the Bingham Centre on streamlining judicial review in a manner consistent with the rule of law.

“In our view the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms than those it has itself proposed which would make the process of judicial review more expeditious and therefore cheaper without compromising effective access to justice,” the committee said.

It recommended that the Government invite the Civil Procedure Rule Committee to amend the Civil Procedure Rules so that the costs of oral permission hearings in judicial review proceedings should be recoverable from whichever is the unsuccessful party at that hearing, including the defendant. This, it said, “would be a more even-handed way of reducing unnecessary cost and delay”.

The JCHR meanwhile welcomed the “unequivocal” confirmation from the Chair of the Independent Review of the Public Sector Equality Duty that in his view the PSED should continue to be legally enforceable.

“It is clear to us that the legal enforceability of the PSED is crucial in ensuring the implementation of, and compliance with, equality law by public authorities,” the committee said. “Quicker and more cost-effective mechanisms may be possible, but should retain the ultimate legal enforceability of the duty by judicial review, rather than be an alternative to it.”

It added that the Government's overall objectives of reducing cost and delay in this area could be taken forward by the Equality and Human Rights Commission as part of its ongoing work to develop a statutory code of practice and further guidance on the PSED.

Dr Hywel Francis MP, the Chair of the Joint Committee on Human Rights, said: “We recognise that there has been an increase in judicial review cases in recent years, but it would have been prudent for the Government to wait until recent changes to how immigration cases are dealt with made clear whether this increase was going to continue.

“The recent Bingham Centre Report on streamlining judicial review is an important contribution to the debate about its possible reform. In our view, the Government could go some way towards achieving its aims of reducing cost and delay by reforms which would not risk compromising effective access to justice – unlike those it has itself proposed.”