New judicial review test “risks undermining rule of law”, peers warn

Houses of Parliament

Lord Lang said access to justice review should not be “unduly restrained”

The government’s plan to introduce a stricter test on judicial review outcomes “risks undermining the rule of law”, the House of Lords constitution committee has warned.

In their report on the Criminal Justice and Courts Bill, which will enter its committee stage in the Lords later this month, the peers said judicial review was central to the rule of law.

The current test gives the courts a discretion to reject judicial review applications where they are satisfied that it was inevitable that the decision involved made no difference to the result.

The new test, set out in clause 64 of the bill, would require courts to reject applications where the outcome would not have been “substantially different”.

Peers said the new test changed “the current test of inevitability to a new test of high likelihood”, raising an issue of “both of principle and practical concern”. They said lowering the threshold risked “unlawful administrative action going unremedied”.

Peers quoted from a statement made by Lord Neuberger, the president of the Supreme Court, in his evidence to the committee.

Lord Neuberger said that although some “hopeless applications” got through, because judicial review was so important, people should accept that “inevitably that there will be some applications that are unmeritorious but nonetheless get pursued and hold things up.

“But provided it does not get out of hand—I have no reason to think that it has got out of hand—it is a small price to pay for a healthy judicial review system.”

The constitution committee added that clause 64 could turn the permission stage of a judicial review hearing into a “full dress rehearsal of the substantive hearing”.

Peers also attacked clauses 67 to 70 of the bill, which would impose tougher costs rules on interveners and restrict the ability of the courts to make protective costs orders (PCOs) in judicial review cases.

The committee said that peers may wish to consider, as the bill progressed through the House of Lords, “whether the restrictions in clauses 67 to 70 impose too great a limit on effective access to justice”.

Lord Lang of Monkton, the committee chairman and a Conservative peer, said: “The Criminal Justice and Courts Bill will clearly have a significant impact on judicial review.

“Judicial review is an important means for citizens to challenge the legality of decisions by the state, so access to the process should not be unduly restrained.”

Justice minister Lord Faulks told the House of Lords earlier this year that ministers “firmly reject” the accusation that changes to the rules for payment of legal aid in judicial review cases would undermine access to justice.


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