The Bar Council, the Law Society and the Chartered Institute of Legal Executives (CILEx) have called on peers to oppose curbs on judicial review set out in part 4 of the Criminal Justice and Courts Bill.
Part 4 would, among other things, restrict the use of protective costs orders (PCOs) and impose tougher costs rules on interveners. It is due to be debated, as the bill goes through its report stage in the House of Lords, either today or on Monday next week.
The professional bodies said part 4 would have a “chilling effect” on individuals and organisations seeking justice.
In particular, they said it would stop judges from granting PCOs until permission was granted – “a stage which in itself requires intensive up-front work by lawyers”, which incurred costs.
Frances Edwards, president of CILEx, said this could mean judicial review would “only be available to risk takers with deep pockets”.
She went on: “Access to justice should be about the merits of your case, not the size of your wallet.
“The bill would also allow a government minister to decide what matters are in the ‘public interest’, rather than independent judges. This would enable future governments to keep certain challengers at arm’s length.”
Andrew Caplen, president of the Law Society, said making interveners in judicial reviews liable for costs would have a “chilling effect” on individuals and organisations seeking justice.
“Expert organisations, including charities and NGOs do not wade in to judicial reviews for fun,” Mr Caplen said. “The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions.”
The professional bodies said the bill would also force judges to consider making costs orders against anyone who might be able to help the claimant financially, including friends, family and neighbours.
“Encouraging judges to force your friends and family to fork out when you challenge a public authority will be a massive disincentive to those seeking redress from government wrong-doing,” Nicholas Lavender QC, chairman of the Bar Council, said.
He called on peers to support amendments to part 4 of the bill tabled by Lords Pannick, Woolf, Carlile, and Beecham.
“These amendments will make sure that the legality of government decisions can be challenged by anyone with a legitimate case, that the fight will be fairly fought, and that it will be refereed by judges, not government ministers.”
The Joint Committee on Human Rights, made up of cross-party MPs and peers, reiterated its opposition to the costs changes earlier this week. The House of Lords constitution committee strongly criticised part 4 of the bill this summer.