MPs and peers on the Joint Committee on Human Rights (JCHR) have attacked government plans to make sweeping changes to the costs rules for judicial reviews.
It formed part of the committee’s wider critique of the changes to judicial review, which it said lacked “supporting evidence”.
In February, the Ministry of Justice (MoJ) confirmed that it would be pushing ahead with a crackdown on what the government sees as weak or frivolous judicial reviews.
The JCHR is made up of six peers, including leading legal reformers Lord Lester and Baroness Kennedy, and six MPs, including Sir Edward Garnier, the former Conservative Solicitor General, and the chair, Dr Hywel Francis, a Labour MP.
In a report, published this morning, on the implications of the reforms for access to justice, the JCHR said the proposal to make payment of legal aid for pre-permission work in judicial review cases conditional on permission being granted, subject to the Legal Aid Agency’s discretion, was not justified by the evidence.
“Instead it constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking.”
The committee said the change put “too much risk onto providers” and created “too much uncertainty about the degree of such risk”, leading to a “chilling effect” where meritorious cases would not be brought.
The JCHR recommended that the government should withdraw its proposed statutory instrument on legal aid funding, and instead table an amendment to the Criminal Justice and Courts Bill, so it could be properly debated.
The committee said that restricting protective costs orders (PCOs) to cases where permission to proceed had been granted was “too great a restriction” and would undermine access to justice.
Instead, it proposed that courts should have the power to make costs capping orders at any stage in the proceedings, including applying for permission.
The committee said that cross-capping, which limits a defendant’s liability for costs, should be a presumption rather than a duty, to preserve some element of judicial discretion.
Adopting a proposal from the Bingham Centre for the Rule of Law, MPs and peers said that the costs of oral permission hearings should be recoverable from the losing side, whether claimant or defendant.
“There is currently no real reason for judicial review defendants not to resist permission, because there is no costs incentive on the defendant to concede permission,” they said. “Yet routine resistance to permission by defendants leads to additional cost and delay.”
The JCHR defended the role of interveners in judicial review cases, describing third-party interventions as having “great value” in allowing courts to hear wider arguments.
Under the MoJ’s proposals, there would be a presumption that interveners, other than those invited to intervene by the court, would pay not only their own costs but those incurred by defendants responding to their arguments. The committee said such interventions already required judicial permission, which could be given on terms which restricted the scope of the intervention.
It recommended that the Criminal Justice and Courts Bill be amended to restore judicial discretion.
Dr Francis said: “We recognise that there has been an increase in judicial review cases in recent years, but it would have been prudent for the government to wait until recent changes to how immigration cases are dealt with made clear whether this increase was going to continue. The recent Bingham Centre report on streamlining judicial review is an important contribution to the debate about its possible reform. In our view, the government could go some way towards achieving its aims of reducing cost and delay by reforms which would not risk compromising effective access to justice – unlike those it has itself proposed.
“We also believe that the government’s proposals in this area show how the combined roles of the Lord Chancellor and Secretary of State for Justice are in conflict. This is a matter which we think relevant parliamentary committees should examine. There needs to be a complete review of the implications of combining in one person these roles, and of the current structure of departmental responsibilities between the Home Office and the MoJ.”