At last some hope: defeat in the House of Lords of Judicial Review Proposals

29 October 2014

Studies may have found Tuesday to be the most depressing day of the week, but this Tuesday, many legal practitioners received a small mercy for which to be grateful. The news was in that the previous evening’s Report Stage consideration of Part 4 of the Criminal Justice and Courts Bill had taken place, and the government had experienced heavy defeats in several important votes on proposals to restrict access to judicial review.

Judicial review provides the tool that citizens can use to hold the State to account. Individuals can challenge government or public body decisions in court by bringing proceedings for judicial review. It is a check and balance on the power of government, and a fundamental part of our legal system. Indeed, in the words of Lord Dyson (now Master of the Rolls) in R (Cart) v Upper Tribunal [2011] UKSC 2: “There is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review.”

Three vital amendments to the Bill were introduced in the House of Lords last night. The first rejects a proposed presumption that those who apply to intervene in a judicial review case will have to pay their own costs. Secondly, the government lost by 66 votes with respect to the Bill’s proposal to lower the threshold of the materiality test. The proposal was that the court could reject judicial review applications which were “highly  likely” not to lead to a different outcome, rather than the current test applied that judicial review would “inevitably” make no difference. Finally, the third amendment removed a provision that would necessitate applicants giving detailed information about how their application was being financed.

It is notable that some of the Bill’s proposals have the consequence that judicial review would become the preserve of only the very wealthy in our society. Surely we all have an inherent interest in ensuring that the government acts lawfully? In addition, the materiality test is an important check and balance on the Rule of Law. If a public body is judicially reviewed in respect of something which can be shown to be “highly likely” to make no difference to a given situation, this in itself does not make the public body’s actions any more lawful or unlawful, as the case may be. We should all have a stake in ensuring our elected government behaves in a manner which is lawful.

One reason the government provides for the necessity of reform of the judicial review process is the apparent large rise in judicial reviews. However, this is something of a misinterpretation; although there has undoubtedly been significant growth in the number of judicial review cases brought, the increase has been in cases relating to immigration and asylum. In non-immigration and asylum cases, the number of cases has in fact decreased since 2006.

The main thrust of the government’s support in the Lords last night stemmed from peers such as Lord Tebbit, who argued that parliament should be upholding laws rather than the “unelected dictatorship” of judges. However, the logic of this argument effectively leaves no redress for those in situations where the government has made an unlawful decision. Public bodies and government are not infallible and to name just three notable examples of successful judicial reviews in recent months:

1) The successful challenge to proposed reforms which would have introduced a residence test for legal aid, on the grounds that it was discriminatory and unlawful;

2) The High Court’s ruling that the Lord Chancellor had not carried out a proper review of the likely effect of removing the exemption which applies to the recovery of success fees and after the event (“ATE”) insurance claims for mesothelioma claimants;

3) The recent decision of High Court that part of the government's legal aid reform in England and Wales is unlawful, and that the Ministry of Justice’s failure to let lawyers comment on two reports and was so "unfair as to result in illegality".

In terms of next steps, the Third (and final) Reading of the Bill in the House of Lords is scheduled for mid – November. It then moves to the Commons, where MPs will debate and consider the amendments made in the Lords. Therefore, nothing is yet certain in terms of what the “finished product” may say.

It seems that the debate in the Lords last night reached sensible conclusions, and it can only be hoped that similar decisions follow in the Commons. Many lawyers will be willing MPs in the Commons to have Lord Deben’s words from last night’s debate in their minds when considering the Bill. After noting that judicial review represented “defence of freedom", Lord Deben gave his honest assessment that the existence of the power of judicial review had made him a better minister “because it made me think of the law, not my opinion".

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