The Law Society, Bar Council and Chartered Institute of Legal Executives (CILEx) have written to MPs in a final push to protect judicial review, as the Criminal Justice and Courts Bill enters its “ping pong” stage in Parliament next week.
Peers made three amendments to the bill’s judicial review clauses during its third reading at the end of last month. All three restored judicial discretion – the first two over the circumstances in which cases should be rejected, the third over the extent of interveners’ liability for costs.
Frances Edwards, president of CILEx, said: “The amendments made by their lordships enable judges to apply tougher rules in appropriate cases, and not apply them where to do so would be wrong.
“This discretion is best held by the judge hearing the case, and we strongly encourage parliament to not constrain judges from applying these rules fairly.”
Ms Edwards joined peers in attacking the new rule which would force judges to reject cases where the courts thought it “highly likely” that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
“Raising the no-difference threshold means an authority could escape legal challenge even when they’ve obviously behaved improperly,” she said.
“It will mean a judge second guessing the likelihood of a different outcome before hearing the issues in the case. That would increase the volume of evidence at the permission stage, adding to costs and delay.”
Referring to government plans to make interveners liable for costs incurred by other parties, Andrew Caplen, president of the Law Society, said: “Expert organisations do not wade in to judicial reviews for fun. The judge must first give them permission to make an intervention, and they do so because their expertise helps judges make more informed decisions.”
Nicholas Lavender QC, chairman of the Bar Council, added: “Peers have made some very sensible amendments to address our concerns. The fact is that those in power sometimes get it wrong, and judicial review is an important check on unlawful action by the government or other public bodies.
“It has been used to stop people being imprisoned without charge, care homes being closed unjustifiably, schools being moved without good reason, or planning permission being wrongly granted or wrongly refused.”