Amendments to the Government's controversial proposals to reform judicial review, discussed in our previous e-bulletins here and here, were accepted by the House of Lords on Wednesday 21 January 2015. These amendments included the introduction of a new test of "exceptional public interest", to be used to grant permission or relief in judicial review proceedings even if they fall within the scope of the ‘no difference’ rule.
- The amended Bill states that a court must refuse to grant permission or relief in judicial review proceedings where it appears to the court that it is “highly likely” that the outcome would not have been substantially different if the impugned conduct had not occurred ('the 'no difference' rule'), unless it is shown that "exceptional public interest" warrants the grant of such permission or relief.
- Third party interveners, such as NGOs, are at a significantly greater risk of having to pay any costs incurred as a result of their intervention going forward.
- The Government did not introduce an amendment to deal with the concerns surrounding the financial disclosure requirements on those supporting judicial review claims, but committed to a public consultation with a threshold figure of £1500 in mind.
Proposed reforms to judicial review contained in Part 4 of the Criminal Justice and Courts Bill ('the Bill') have faced vocal opposition at every stage of their passage through Parliament. Criticism from Opposition leaders has been matched by crossbenchers, and echoed by prominent civil society organisations and charities. The key sticking point has been the restrictions placed by the Bill on the courts' discretion in handling judicial review claims by placing additional hurdles for judicial review applicants.
After the third sitting of the House of Lords on 27 October 2014, the Lords rejected key aspects of the judicial review reforms, including the issues concerning the ‘no difference’ rule, the provision of financial information about those supporting claims and interveners’ costs.
The Lords’ motion regarding the third of those issues (interveners’ costs) was rejected, and not included in the amended bill placed before the Commons in December 2014. Therefore, under Clause 67 of the Bill, interveners must be ordered to pay costs incurred as a result of their involvement, where one of four specified conditions is satisfied (such as whether their submissions were of assistance to the Court, whether the intervener behaved reasonably and whether the submissions were on matters that should have been considered by the Court).
The other issues were debated extensively in both Houses over December 2014 and January 2015, and the House of Lords resolved all outstanding issues and approved the amended provisions on Wednesday 21 January 2015. The Bill is now awaiting Royal Assent.
Exceptional public interest (Clause 64)
During the proceedings on 9 December 2014, the Lords invited the Lord Chancellor to "think again about the need to retain judicial discretion in the public interest". In response, the Lord Chancellor tabled an amendment to the ‘no difference’ rule in Part 4 of the Bill and proposed an exception to allow courts to disregard the rule when it is "appropriate to do so for reasons of exceptional public interest".
The House of Lords accepted the amendment, but several members expressed their reservations about the wording of the clause. The precise scope of the term "exceptional public interest" was the subject of extensive debate in the House of Lords as it has no precedent, and the debate noted that it was an unusual formulation.
Lord Pannick stressed the need for the courts to bear in mind the Lord Chancellor’s explanation of the purpose of the clause - namely to prevent judicial reviews being heard when they are based on relatively minor procedural defects. Lord Faulks suggested that the word 'exceptional' would mean different things in different contexts. It remains to be seen which way the courts will lean, but their approach towards interpreting this clause will have a considerable impact on the future of judicial review challenges in the English courts.
Information about sources of financial support (Clause 65)
The House of Lords had earlier suggested amendments to the clause that would allow judges the discretion to allow a judicial review to proceed without this information on the source of financial support for the proceedings being provided to the court. These amendments were rejected, but the Lord Chancellor introduced a degree of clarity over the level of contributions that would trigger the requirement to identify sources of financial support. The threshold will be determined after formal consultation, but the Lord Chancellor committed to approach the consultation with a suggested amount of £1500 and an additional figure of 5% of the available funds.
In the House of Lords, Lord Faulks reiterated the Government’s commitment to these figures. Crucially, he also clarified that the amended clause would neither force the courts to refuse permission to an otherwise meritorious judicial review on account of lack of funds, nor change the circumstances in which it would be appropriate to make costs awards.
NGOs and charities who regularly act as interveners in judicial review proceedings have voiced concern about the new approach which will expose them to costs risks. It remains to be seen how many interveners are now willing to take that risk, and how the courts apply the legislation in practice.
While viewed as a limited concession on the part of the Government to the original ‘no difference’ clause, the new ‘exceptional public interest’ test is likely to result in considerable uncertainty regarding the situations in which the courts can exercise its discretion and grant permission for judicial review claims.
The decision to hold a consultation on the threshold for disclosing financial sources comes means the passing of the Bill will not of itself be the final word in this reform. If the Government ends up setting a fairly low threshold above which financial contributions towards challenges have to be disclosed, it may still have a chilling effect on judicial review proceedings.