Key aspects of the Government's controversial proposals to reform judicial review, discussed in our e-bulletin of 12 February 2014 (see link here), were rejected by the House of Lords on Monday 27 October 2014. It remains to be seen whether the Government will continue to pursue these proposals when the Criminal Justice and Courts Bill returns to the House of Commons.
- The House of Lords has watered down some of the most contentious aspects of the Government's proposed reforms to judicial review contained in the Criminal Justice and Courts Bill.
- Three key amendments moved by Lord Pannick were passed, the effects of which are to maintain the courts' discretion in relation to:
- Granting permission and relief in cases involving procedural flaws that would not have affected the outcome of the decision;
- Requiring those supporting judicial review claims to disclose their financial resources and the court to have regard to this information in awarding costs; and
- Requiring interveners to bear any increased costs that their intervention has on the parties to a judicial review claim.
Proposed reforms to judicial review contained in Part 4 of the Criminal Justice and Courts Bill have faced vocal opposition from a wide range of charities, NGOs and the legal profession. The Parliamentary Joint Committee on Human Rights also criticised the proposals and the House of Lords Constitution Committee expressed concerns about their effect on the rule of law. The Law Society, Bar Council and Chartered Institute of Legal Executives all opposed the reforms and urged Peers in the House of Lords to amend the proposals. On 27 October 2014, the House of Lords heeded that call, passing three amendments which watered down some of the most contentious proposals.
A major criticism of the proposals was that they sought to fetter the courts' discretion in handling judicial review claims by placing additional statutory obstacles in the paths of those bringing or supporting judicial review claims. The amendments have restored that discretion in three key areas: the "no difference" rule; the provision of financial information about those supporting claims; and the costs of interveners. Further amendments in relation to protective costs orders, legal aid in judicial review and the power to make supplementary provisions by secondary legislation were either not passed or not moved.
Clause 70 of the Bill provided that a court must refuse to grant permission or relief in judicial review proceedings where it appeared to the court to be "highly likely that the outcome … would not have been substantially different if the conduct complained of had not occurred." Lord Pannick moved amendments substituting the word may for must in this clause, which were passed by 247 to 181.
Clause 71 of the Bill provided that a court shall not grant permission to apply for judicial review unless the applicant had provided the court with information about its financial resources, including how it would meet any liabilities arising in connection with the application. Under Clause 72 the court must have regard to this information in awarding costs. Lord Pannick moved amendments to clause 71 which allowed the court to grant permission notwithstanding a failure to provide this information if "the court in its discretion considers that it is nevertheless appropriate to grant [permission]" and an amendment to clause 72 under which the court may instead of must take this information into account in awarding costs. These were passed by 228 to 195.
Clause 73 dealt with the costs of interveners. It provided that the main parties to judicial review proceedings may not be ordered to pay interveners costs and that (on the application of a main party) an intervener must pay any costs incurred as a result of the intervention, in each case unless there were "exceptional circumstances". Lord Pannick moved an amendment replacing these provisions with a general discretion in relation to interveners' costs, reflecting the status quo. This was passed by 219 to 186.
The amendments address some of the most contentious aspects of the proposed reforms, and are to be welcomed. However, it remains to be seen whether the Government will continue to press for these reforms when the bill returns to the House of Commons.