The House of Lords yesterday accepted the government concessions aimed at warding off yet another confrontation over the judicial review (JR) reforms in the Criminal Justice & Courts Bill.
Praising justice minister Lord Faulks for having pushed for the changes, peers did not press the government amendments to a vote.
The two remaining issues concerned stopping JRs brought on grounds “highly unlikely” to make a substantial difference to the outcome for the applicant, and the provision of financial information on an application for permission for JR.
On the first, the government tabled an amendment that will permit the court to grant permission or a remedy where it considers that “reasons of exceptional public interest” mean that that is appropriate.
Lord Faulks said he accepted that exceptional public interest is “an unusual formulation”, explaining: “A high degree of public interest specific to the case is required for the exception to be met. We think that that is a fair compromise in the light of my second observation: we have purposely not defined the term ‘exceptional public interest’, meaning that the judiciary will apply the term in practice to the facts at hand.
“For fear of appearing to seek to fetter that discretion, I will forbear from setting out further detail on how the government would wish to see the term applied in future.”
Lord Faulks said: “This approach will ensure that the protection desired for smaller contributors will be provided without allowing those with a larger financial stake and who control litigation to avoid their due level of risk.
“Additionally, I am happy to make clear that this approach has the virtue of not excluding the procedure rules committees, who will ultimately decide the level of the threshold when making the rules.”
He also clarified that the new provisions will not force a judge to refuse permission to an otherwise meritorious judicial review for reason of lack of funds. “Similarly, the clauses do not change the law governing the circumstances in which it will be appropriate for judges to make costs awards. That remains a matter for judicial discretion, as it always has been.”
Lord Pannick, who led the opposition to the Bill, welcomed the concessions. On the first, he said: “I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are, ‘based on relatively minor procedural defects in a process of consultation… That is what these proposals are all about’.
“I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.”
He also made one final attack on Mr Grayling for comments in the House of Commons “that display an astonishing lack of understanding about the role of judicial review – one of the cornerstones of the rule of law”.
Mr Grayling said he had “severe doubts about whether secondary legislation should be subject to judicial review”. Lord Pannick responded: “These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers…
“However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.”