Opponents to the government’s reform of judicial review had a triple success in the House of Lords yesterday, with peers supporting amendments to the Criminal Courts and Justice Bill that restored judicial discretion where the plan was to straightjacket decision-making.
Led by crossbench peer and top administrative lawyer Lord Pannick QC, a cross-party coalition voted 247 to 181 to amend clause 70, which as drafted mandated judges to reject a case if the defendant showed that it was highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
Clauses 71 and 72 required applicants to provide details of how the case was being financed before the judge could grant permission. Peers voted 228-195 to allow judges the discretion to grant leave to pursue a JR without this information where “appropriate”.
Finally they voted 219-186 to amend clause 73, which had stated that interveners who were not invited to intervene by the court may not receive their costs and must pay any costs that have been incurred by a party as a result of that intervention, other than in exceptional circumstances. The amendment simply gave the court discretion over whether to order such payments.
But peers heavily rejected a fourth amendment pressed to a vote by Lord Pannick, this time to clause 74(3), which provided that costs-capping orders should be made only where permission to proceed to judicial review has been granted.
Only two Conservative peers – Lords Horam and Tebbit – spoke against the amendments, while a host of legal luminaries – including former Lord Chancellors Lord Irvine and Lord Mackay, and former Lord Chief Justice Lord Woolf – were strongly in favour.
The amendments also supported in the lobbies by former Conservative cabinet ministers John Selwyn-Gummer, who sits as Lord Deben, and Lord Howe, and 17 Liberal Democrat peers.
The government will now seek to overturn the amendments in the House of Commons, which had already approved the bill as drafted, in the so-called ‘ping pong’ phase where differences between the two Houses are ironed out. The Guardian said yesterday that the closer the election comes, the less likely it is that this will be “a foregone conclusion”.
Lord Pannick said clause 70 would prevent a judge from considering whether, in the particular circumstances of the individual case, there was good reason to allow the claim to proceed or to grant a remedy such as a declaration.
It ignored “the fact that one of the central purposes of judicial review is to identify unlawful conduct by the government or other public bodies. If ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference.
“This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, ministers and civil servants know that they must change their conduct for the future. That is precisely what they do”.
He said it would also be “time consuming, expensive and an extremely difficult exercise for the judge. It would promote satellite litigation”.
Lord Irvine told the House: “Ministers, who are politicians, often will be frustrated if their decisions are challenged or quashed, but that is an intrinsic aspect of government subject to the rule of law, as is the need for ministers to be aware of their duty to comply with the law.
“A government who are confident that their decisions cannot be readily challenged risk becoming a government who no longer have to respect the rule of law. That is a risk that no Secretary of State for Justice, who also bears the title of Lord Chancellor and is under a duty to uphold the rule of law, should be prepared to countenance.”
On clauses 71 and 72, Lord Pannick observed that the government was seeking to impose duties on applicants that did not apply in other forms of civil litigation.
“If a claimant is able to demonstrate that they have a properly arguable case on the merits and they satisfy other requirements such as standing and time limits, they should not be further obstructed and deterred by complex requirements to disclose financial information,” he said.
On interveners, Lord Pannick added: “I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party.
“Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment.”
Defending the reforms, justice minister Lord Faulks said the government’s proposals “represent a sensible and considered package that will improve the process of judicial review for those with a proper case, put well and founded on flaws that would have made a difference to the applicant. These are common-sense reforms and represent neither the death knell for the rule of law nor a single, double or even triple heresy, as those who listened to earlier debates might perhaps have concluded”.