Professional bodies unite to attack “chilling effect” of judicial review reforms

The Bar Council, the Law Society and the Chartered Institute of Legal Executives have urged peers to amend the judicial review provisions in the Criminal Justice and Courts Bill, saying the measures would have a “chilling effect”.

The three bodies argued that Part 4 of the Bill – which is set to reach the Lords’ report stage on 22 and 27 October – would:

• Restrict the use of protective costs orders, “limiting judicial review to the wealthy”;
• Expose people not party to judicial review, “including friends, relatives and associates of claimants”, to the financial risk of paying costs;
• Discourage helpful contributions made by interveners such as charities, NGOs and others by making them liable for costs, “even when they make positive contributions to our courts' consideration of difficult legal problems”; and
• Shield public bodies from proper scrutiny when they act unlawfully.

On the issue of protective costs, the Bill would mean that judges could only grant an order when permission is granted.

This was a stage which in itself required intensive up-front work by lawyers which incurred costs, the three bodies said.

They added: “Only a handful of PCOs are granted by judges each year as things stand, and only if the case is in the public interest. Yet, the government has implied this gives claimants a free ride, which is an unfair and inaccurate description.”

Nicholas Lavender QC, chairman of the Bar Council, 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? 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.'

Law Society President Andrew Caplen said: “This 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.”

CILEx President Frances Edwards added: “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 professional bodies attacked measures in the Bill which they claimed would force judges to consider making cost orders against anyone who might be able to help the claimant financially, including friends, family and community members.

Nicholas 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.”

The Law Society’s Caplen meanwhile insisted that expert organisations, including charities and NGOs, did “not wade in to judicial reviews for fun”.

He said: “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.”

Amendments to the Bill have been tabled by Lord Pannick, Lord Woolf, Lord Carlile, and Lord Beecham.