Evidence lacking for Government’s proposed reforms to judicial review

30 April 2014

In their new report the Joint Committee on Human Rights says that evidence is lacking to support the reforms to judicial review proposed by the Government.

While restrictions on access to justice are in principle capable of justification, they must be proportionate, reasonable and based upon clear evidence as to their necessity, and the Committee makes clear that the evidential basis for the Government’s proposals is weak.

The Committee points out that the growth in judicial review cases over recent years, which the Government cites as a fundamental reason for changes to the judicial review system, was substantially founded upon an increase in immigration cases; these cases are now being dealt with outside that system – and so the principal cause of the rise in judicial review cases no longer exists. In the Committee’s view, the proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice, and it calls for a thoroughgoing review of the issues raised by the Minister’s dual roles.

The Committee does not consider that the Government’s proposal to make legal aid for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. It believes that this proposal constitutes a potentially serious interference with access to justice. It regrets the fact that the Government has chosen to bring it forward by means of a negative resolution statutory instrument.  It recommends that the Government withdraw the regulations giving effect to this proposal and instead bring it forward as an amendment to the Criminal Justice and Courts Bill to give both Houses an opportunity to scrutinise and debate it in full and to amend it if necessary.
In the Report, the Committee also:

  • notes that lowering the threshold, for courts to refuse permission or a remedy in cases where a procedural defect in the decision-making process would have made no substantive difference to the outcome, from a test of "inevitability" 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;
  • and therefore recommends that clause 52 of the Criminal Justice and Courts Bill which contains the proposal either be deleted, or, if Parliament wishes to retain the clause, be amended so as to reflect the current approach of the courts.

The Committee also:

  • expresses concern that the Criminal Justice and Courts Bill will introduce a significant deterrent to interventions in judicial review cases, and therefore recommends that the relevant sub-clauses in the Bill be removed in order to restore the judicial discretion which currently exists;
  • believes that restricting the availability of costs capping orders to cases in which permission to proceed has already been granted by the court is too great a restriction and will undermine effective access to justice; and
  • notes that, while quicker and more cost-effective mechanisms may be possible, the legal enforceability of the Public Sector Equality Duty  is crucial in ensuring the implementation of, and compliance with, equality law by public authorities, and that the ultimate legal enforceability of the duty by judicial review should therefore be retained. 

Dr Hywel Francis MP, the Chair of the Committee, 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. 

We also believe that the Government’s proposals in this area show how the combined roles of the Lord Chancellor and Secretary of State for Justice are in conflict.  This is a matter which we think relevant parliamentary committees should examine. There needs to be a complete review of the implications of combining in one person these roles, and of the current structure of departmental responsibilities between the Home Office and the MoJ.

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