An illiberal attack on judicial review – the Criminal Justice and Courts Bill 2014

by stevebroach

If the Liberal Democrats stand for anything, surely they stand for the right of the individual to challenge the exercise of state power.

It therefore beggars belief that Liberal Democrat MPs and Peers would support the government’s current attack on judicial review contained within the Criminal Justice and Courts Bill (CCJB) 2014 (.pdf). The CCJB has nearly finished its passage through Parliament. A consortium of charities is campaigning for Peers to scrap the offensive clauses in Part 4 of the Bill; see this briefing from Justice. A debate on these clauses is expected shortly, potentially next Wednesday (22 October 2014).

Judicial review is the main mechanism by which disabled children, disabled adults and those who care for them can enforce their rights. I have written previously about why judicial review provides a real remedy in SEN and disability cases. I’ve also blogged my favourite cases.

The CJCB would make this remedy far less real and effective – which is presumably the government’s intention. As Justice states, ‘The effect of these proposals will be to suppress legitimate challenge; limit judges’ discretion to act in the public interest and shield public agencies from effective oversight.’ Here is why, generally from a disability perspective:

  • Clause 70 states that if the court considers that it is ‘highly likely that the outcome for the applicant would not have been substantially different’ if the unlawful conduct had not taken place, it must refuse to grant permission for a judicial review claim to proceed – or if permission has somehow been granted, it must refuse any relief. At a stroke, this would seriously restrict public interest challenges being brought on behalf of disabled people – meaning that the claimant in every case would have to have a direct interest in the decision or policy being challenged. Given the abject situation many disabled people and families find themselves in, this is a wholly unfair and unnecessary barrier to access to justice.
  • Clauses 71-72 seek to penalise unsuccessful judicial review claimants and charities and other NGOs who support test cases and other litigation. They will affect, for example, family and friends who cover some of a disabled person’s legal costs. They even raise questions as to whether lawyers who act pro bono (free of charge) could be pursued to pay the other side’s costs if the claim fails.
  • Clause 73 was described by several speakers at the recent Public Law Project conference as ‘the death of intervention’. At present, charities and NGOs regularly intervene in important cases to help the court to address the wider issues in the case. By way of example, I was instructed by Mind and the National Autistic Society to intervene (with Ian Wise QC) in the Supreme Court’s hearing of the Cheshire West appeal concerning the definition of ‘deprivation of liberty’. Lady Hale described the intervention as ‘useful’ and confirmed that the matters which the charities said were irrelevant to that test should not be taken into account. See the NAS press release for a summary of the judgment and why the intervention matters. More recently, permission to intervene has just been granted by the Court of Appeal to the charity Just for Kids Law in a case considering whether young adults involved in criminal proceedings as children should continue to benefit from anonymity – the appeal will be heard in November. Yet if clause 73 goes through, the rules on costs it contains will make it practically impossible for any charity to intervene in any case. This is because there will be a presumption that the intervener will have to pay the costs of the other parties incurred by the intervention – which could be thousands of pounds. It is highly unlikely that trustees would be able to justify such expenditure by a charity. Again, at a stroke this clause will deprive the court of the benefit of the wider experience and expertise that charities can offer in cases involving the rights of vulnerable groups.
  • Clauses 74-76 undermine the right of the court to make a ‘protective costs order’ – an order which limits the costs liability of a party to judicial review proceedings (for example a local disability charity bringing a challenge to cuts to short break provision) in the event that the claim fails. One of the most offensive aspects of these clauses is the proposed rule that a PCO would only be available once permission to apply for judicial review is granted. This will mean that a claimant who does not have the benefit of legal aid is forced to issue proceedings and incur the costs of the state preparing its initial defence without any protection from the court. In many cases this will be simply impossible. For a recent case which could not have been brought without a PCO from the outset, see the challenge by the Children’s Rights Alliance for England to the Justice Secretary’s refusal to tell young people previously held in Secure Training Centres that there had been systemic breaches of their human rights by the use on them of unlawful restraint. The challenge by CRAE failed but the case was undoubtedly properly brought, as shown by the careful judgments of the High Court and Court of Appeal. How can it be in the interests of justice for challenges like this to be cut off from the outset? In the CRAE case, there was no way an individual young person could bring the claim funded by legal aid because the whole point of the case was that young people were not aware that their rights had been breached.

There is an extremely illiberal thread connecting these clauses. This thread is the idea that it is acceptable for the executive, being one participant in the judicial review process, to rig the rules for its benefit. Although the clauses will be debated by Parliament they will be whipped through by the parties who run the executive. An even more blatant attempt to stack the cards in the executive’s favour is contained in clause 74(9), which allows the Lord Chancellor (a government Minister) to define what is in ‘the public interest’ for the purposes of the court’s determination of an application for a PCO.

The issues covered by these clauses are all matters which should properly be left to the court’s discretion on the facts of each case. The court is perfectly capable of deciding for itself who should be allowed to intervene in cases, when permission or relief should be granted or whether a claimant should have the benefit of a PCO. The clauses in the CJCB are a nasty attempt to tie the court’s hands and engineer decisions which favour the government in every case. They will have – and are intended to have – a chilling effect on access to justice for vulnerable groups, including disabled people and their families.

Our best hope is that the minority party which professes a commitment to liberal values will recognise its error at the eleventh hour and refuse to support this part of the Bill. How can we make this happen? Well, if anyone lives in the constituency of a Liberal Democrat MP, please express your views fully and frankly to them – using Write to Them, or via their constituency office / surgery. You can also use Write to Them to contact Liberal Democrat Peers. A series of amendments have been tabled by Lord Pannick which Peers of all parties should be encouraged to support.

Further information on the CJCB clauses is in the joint charities’ briefing. As the charities note, ‘There are serious concerns about the constitutional implications of making it harder for those without means to challenge public decision making’. Put less politely, these proposals are offensive to the rule of law and wrong in principle.

There may be ways around these measures if the CJCB goes through unamended, as Michael Fordham QC suggested at the Public Law Project conference. But the Parliament of a liberal democracy should never facilitate the executive’s attempt to rig the game in its favour like this. It should not be left up to the judges to undo the wrong Parliament is about to create. We can only hope that this is one of the moments where the Liberal Democrats remember their intention to exercise a restraining influence within the present coalition.