Parliament's attack on Judicial Review continues

Judicial Review is the process by which a member of the public can challenge a decision made by a public body which directly affects them. It is one of the central pillars of the English justice system.

By way of example, I have used Judicial Review to secure accommodation for children sleeping on the street, ensure children with special educational needs receive the support they need in residential schools and to prevent local authorities from avoiding their duties to young people when they turn 18.

Chris Grayling, the Lord Chancellor, has claimed that Judicial Review is used by “left-wing” groups to push their own agendas by challenging decisions of Government and local authorities and therefore needs to be curtailed. In my opinion this is a grotesque interpretation of a crucial aspect of our legal system.

Mr Grayling has been asked to point to a case of Judicial Review to evidence his argument. He has failed to do so. This is likely because no such case exists. That is because the Court has to consider whether to give permission for every application for Judicial Review. If permission is not granted, the matter never gets off the ground. Permission to proceed with Judicial Review is only given if the case has merit, has a reasonable chance of success, is not vexatious or frivolous and the applicant has a genuine interest in the matter.

I wrote about proposed changes to Judicial Review being pushed forward by the Lord Chancellor. These changes were advanced under the Criminal Justice and Courts Bill.

The most offending elements of the Bill were as follows:

• Clause 70 – even if the public body acted unlawfully in reaching a decision, if that same decision could, theoretically, be reached using a lawful process, Judicial Review is not available.

• Clauses 71-72 – anyone who financially, or otherwise, supports an application for Judicial Review may face financial penalties.

• Clause 73 – Any organisation that intervenes (to provide advice) in a Judicial Review may be liable for the Costs that their intervention causes the other parties. Judges have often thanked interveners for their help in difficult cases.

• Clauses 74-76 – 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’.

The House of Lords considered the content of that Bill on 27 October 2014. The outcome was that a number of significant amendments were proposed by the Lords. These amendments were suggested after a number of eminent law Lords and members of the House with direct knowledge and experience of Judicial Review expressed concern.

Most commentators have expressed that they consider that the Clauses detailed above would result in Judicial Review being almost impossible to access. It would also result in public bodies being able to act unlawfully, in any way, provided that they could also show that there could be a lawful method of reaching the same decision.

On 1 December the House of Commons considered the changes proposed by the Lords. Shortly before hand, Mr Grayling had indicated that if all of the Lords amendments were rejected by the Commons he would be willing to change Clause 73 so that interveners would only suffer costs if their involvement did not “significantly” assist the Court.

The Commons have voted to reject all of the amendments proposed by the House of Lords. This vote was made by an almost empty House, suggesting a complete lack of interest by Parliament in this fundamental issue.

The Bill will now return to the House of Lords for further discussion and debate.