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Public Law Project blasts MoJ reforms to judicial review

The Public Law Project has lambasted the Government’s latest reforms to judicial review, claiming that they would make it more difficult and potentially more expensive to challenge the actions of public bodies.

In its Judicial Review: proposals for further reform consultation paper, issued in September, the Ministry of Justice put forward a range of proposals including a tighter test on standing and revised costs rules.

At the time, the Ministry said the Government was “concerned that the wide approach to standing has tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making”.

It added: “The concern is based on the principle that Parliament and the elected Government are best placed to determine what is in the public interest. On that basis, judicial review should not be used to undermine this role by putting cases before the courts from individuals with no direct interest in the outcome.”

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In a heavily critical briefing note, published this week, the Public Law Project (PLP) said the measures – when taken together with the MoJ’s proposals in Transforming Legal Aid ­– represented “a profound and constitutionally significant attack on the ability of individuals, charities and NGOs to access judicial review”.

The legal charity added: “Their effect will be to insulate executive action from judicial scrutiny, weakening the rule of law.”

The PLP pointed out that if all the MoJ’s proposals were implemented:

  1. Changes to the rules on standing concerned who should be allowed to bring a claim for judicial review rather than the current arrangements which focused on the substance of a claim and the importance of getting a claim before the court so that public law wrongs could be identified and remedied. “The changes would mean that charities, NGOs and campaigning groups would have to show they had a direct interest in the outcome of the proceedings in order to be permitted to bring a claim for judicial review.”
  2. Changes to the rules on protective costs orders (PCOs) would mean that such a “direct interest” in the outcome of proceedings would “in the vast majority of cases” be an absolute bar to charities, NGOs, and campaigning groups being able to access the court. “This is because without some limit on the amount of money such organisations would have to pay towards the defendant’s costs if the judicial review claim were to fail, most would be unable to bring a claim at all, even in cases where the court considers it is in the public interest for the organisation to bring the case.”
  3. Changes to the rules on interventions would establish a presumption that third parties would be liable to pay the additional costs incurred as a result of their intervention. “The proposals would increase the financial risk of intervening, and so would deter expert interventions, again by charities, NGOs, and campaigning groups.”
  4. Changes to the rules governing costs would mean an increased costs risk for both claimants and their legal representatives, by restricting payment of legal aid in judicial review cases in which permission to apply for judicial review is not granted, by seeking to make claimants liable for all a defendant’s costs where permission to apply for judicial review is refused, and by seeking to increase the circumstances in which the court is able to make wasted costs orders.
  5. Changes to the test the court would apply when decision making in cases where claimants challenge procedural defects in public bodies’ decision-making would make such challenges more difficult to bring.

On the changes to the rules on standing, the Government has proposed that individuals and groups who do not have a ‘direct and tangible interest’ in the outcome of the proceedings should not have standing to bring claims.

The PLP said the proposal misunderstood the constitutional role of the court in judicial review cases to prevent abuse of power.

The briefing note argued that:

  • Technical rules on standing should not be used to insulate executive action from accountability.
  • If NGOs, charities, faith groups and campaigning groups cannot bring judicial reviews, some government action would be impossible to challenge.
  • The Government had produced no evidence in its case for change, and in particular had “failed to support its assertion that judicial reviews are brought by interested groups or individuals solely to get publicity or cause delays”.
  • It was unclear what organisations would be prevented from bringing claims for judicial review.
  • The Aarhus Convention established principles on the importance of judicial review for public interest litigation in the environmental context. “No principled reason has been advanced by the Government for curtailing the availability of judicial review in all cases in all other areas of law.”

On the question of costs, the MoJ said it wanted to “rebalance” the financial incentives that contribute to claimants’ decisions whether or not to bring and pursue applications.

Among the proposals are a suggestion that it would become impossible for those with a private interest in a judicial review claim to obtain a protective costs order.

There are also planned changes to the rules on third party interveners and wasted costs orders, as well as a revised proposal in relation to legal aid payment in cases where no order to grant permission to apply for judicial review is made.

The PLP argued that judicial review was unlike normal civil litigation and so required special costs rules.

“No evidence has been provided to support changing the rules in favour of defendants,” the charity claimed.

It added that the Government’s proposal ran counter to Lord Justice Jackson’s recommendation that judicial review claimants be protected from being deterred from bringing good claims by the risks of having to pay excessive costs if the case were lost.

The PLP also argued that financial incentives had already been rebalanced through the Government’s April 2013 reforms. The briefing note went on to criticise the individual proposals for rebalancing financial incentives.

In relation to judicial review claims brought on the basis of procedural defects, the MoJ has proposed two alternative proposals: to bring the consideration of the ‘no difference’ test forward to the permission stage; or to lower the threshold of the ‘no difference’ test from inevitability to high likelihood.

The PLP said the Ministry had provided no evidence that the current test applied by the court was flawed. “The proposal will not in any event achieve the Government’s stated aim,” adding that there were important and well established public policy reasons for maintaining the current high threshold before a court withholds a quashing order.

The PLP also pointed out that good public administration required decision makers to be aware when they have got the law wrong.

It warned that the Government’s proposal might incentivise bad decision-making, and that there could be increased costs and ‘bottlenecking’ of proceedings if consideration of the ‘no difference’ test must take place early in proceedings at the permission stage.

The briefing claimed that the proposals on procedural defects would “aggravate the chilling effect on legally aided claimants’ representatives if the Government’s legal aid proposal is implemented”.

The deadline for responses to the MoJ consultation is 1 November 2013.

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