Impact assessment of Criminal Justice and Courts Bill 2014

Currently working its way through Parliament is the Criminal Justice and Courts Bill 2014. As with recent ‘new’ law, this new Bill seems to bundle together what would seem to be separate issues. The Bill, if it becomes an Act, will bundle together criminal law and general court reforms.

Of significant concern is the impact to judicial review that this Bill would have if it becomes an Act in its current form.

Judicial review is a process whereby an individual can challenge the decision of a public authority. The court is then asked to decide whether the decision is irrational, unlawful, failed to follow proper procedural lines or generally went against a ‘legitimate expectation’ of the person concerned.

Why is this relevant?

Generally, Judicial Review is a helpful method of challenging what can be fundamental errors in decision taken by local authorities. It is a remedy of last resort, however, it is the often the only satisfactory remedy. Complaints to the local authority itself and/or the Local Government Ombudsman can often take a long time, not result in the local authority being required to do anything and lack specific legal knowledge and/or the ability to consider the application of the law.

I have previously acted in a number of Judicial Review cases, including R (RO) v East Riding of Yorkshire. These cases, and this in particular, are all important to give general points of principle going forward for all practitioners. It is a way of clarifying the law and means that the law can be refined, even decades, after it was written.

As most parents with children with special educational needs will be aware, the Children and Families Act 2014 created Education, Health and Care Plans (EHCP) which will, over the next 3 ½ years, replace the Statement of SEN. For more details about the transition process see my article here.

As the name suggests, the EHCP will detail needs and provision across health, education and social care areas. However, the detail of the provision within health and social care cannot be challenged other than by an application for Judicial Review (aside from a complaint to the local authority, which most parents will consider a very unsatisfactory ‘remedy’).

Further, the EHCP can also now contain a ‘personal budget’ which will give a monetary figure to the support within the Plan. Parents and young people will also be able to ask for that Personal Budget to be paid in particular ways, such as Direct Payments (factsheets will be available on our website soon). These issues too, ultimately, will only be challengeable by way of judicial review.

What are the proposed changes?

Readers should be aware of the following:

• Bills are written in ‘clauses’ which become ‘sections’ when the Bill is made into an Act of Parliament; and
• In Judicial Review cases, there is a possibility (currently) that if you lose then you may have to pay the other party’s legal fees.

Clause 70 sets out that if the Court is happy that the same decision would be reached, but the process to it was lawful, then the application for Judicial Review must fail. This ultimately means that local authorities may act unlawfully provided that their decision is ultimately, seemingly, reasonable. This would more or less remove the ‘unlawful’ head of challenge currently available.

Clauses 71-72 suggests that anyone who financially, or otherwise, supports an application for Judicial Review may face financial penalties. This is likely to restrict lawyers, charities and public interest groups from being able/ willing to help in these cases.

Clause 73 means that if any organisation intervenes in a Judicial Review they may have to pay the other parties’ costs of that intervention. Intervention is where an organisation with a specialism applies to the Court to help with the case. Judges have often thanked interveners for their help in difficult cases.

Clauses 74-76 mean that the Court will be very restricted in making ‘cost protection orders’. These Orders have been used as a shield for many parties applying for Judicial Review. The significant restrictions would mean that many people / organisations will simply be ‘priced out’.

What would this mean?

If the Bill goes through in its current form, the following outcomes are very likely;

• The Court will be approached less often for guidance (through Judicial Review) on complex areas of the law. The likely result is that confusion in complex areas will remain unresolved;
• Anyone considering Judicial Review will need to be very sure of their case, and well insured, before even considering it;
• Disability groups and charities are likely to be driven from the Court door, meaning that vulnerable sectors of society will be further disadvantaged; and
• The accountability of local authorities to the public will be significantly decreased.

See the current challenge to the proposed changes here.