Lords (potentially) save Judicial Review

On 21 October I wrote about the proposed changes to Judicial Review that the Government were advancing within the Criminal Justice and Courts Bill. Our previous article on the impact, especially for people with SEN, can be found here.

Last night, 27 October, the Bill went to the House of Lords for further discussion. The Lords had been presented with a concise report from Justice, which is a group dedicated to preserving the rule of law, and 30 other charities and NGOs about the negative impacts that the Bill could have had (again see our previous article).

The most concerning parts of the Bill were the following clauses:

• 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 last night’s activities meant is that the Bill will be sent back to Government for substantive reconsideration. The amendments that the Lords have advised Government to include within the Bill would effectively remove / significantly reduce the 4 concerns above.

The Government will now be given the opportunity to decide whether or not to agree with the Lords. It is worth bearing in mind that the Lords have already sent back a version of this Bill to the Government who failed to adopt any of the changes – much to the despair of at least one Law Lord.

The Bill will return to the Lords at some point between 10 and 17 November. It will then become clear to what extent the Government had accepted and understood the concerns raised by the Lords, Justice and the 30 other charities that have commented on the Bill.

If you have the time for further reading, it is worth looking through the Lords discussions.