The proposed Criminal Justice and Courts Bill, which makes amendments to the judicial review process in the UK, has been examined by the House of Lords Select Committee on the Constitution, as seen in a newly released report. The report raises concerns about the effect of new rules of court for judicial review and the potential impact on access to justice and effective remedies for those taking public interest cases. The new rules may pose problems by restriction of court discretion and limiting access for those with limited financial resources.
The proposed Bill gives statutory footing for protective costs orders (PCOs), which are described as “costs capping orders”. Under clauses 68-70, the orders can only be made if leave to apply for judicial review has been granted, and only to the applicant, excluding interveners or other parties to the case from seeking cost orders. The rules of the court may require the application to include information on financial resources available to the applicant, and ability to meet liabilities arising in making the application. The new rules do not take into account that pre-permission costs alone may be prohibitively expensive for some applicants.
When making a ‘costs capping order’ the court must be satisfied that the proceedings before them are ‘public interest proceedings’ and that in the absence of the order would withdraw the application for judicial review and that it would be reasonable to do so. In deciding whether proceedings are in the public interest the court may consider the number of people affected if relief is granted, significance of the effect on those people, and whether the proceedings involve point of law of general public importance.
Another point of concern, according to the report is the so-called ‘Henry VIII’ powers conferred to the Lord Chancellor, wherein he can amend the criteria for determining whether proceedings are public interest proceedings. The Lord Chancellor may do this by regulation and without primary legislation. The House of Lords Select Committee called into question whether this Henry VIII power was “constitutionally appropriate”.
The proposals have been criticised both by the senior judiciary and the Joint Committee on Human Rights. Senior judges’ criticisms were previously reported on by the PILA Bulletin. The Report of the Human Rights Joint Committee, published in April, raised issues with the effect the Bill would have on access to justice, especially in relation to capping of costs and recommended easing of some of the new restrictions including allowing applications for costs orders to be made at any stage in the proceedings and by any party. The Joint Committee also suggested that the new powers to the Lord Chancellor would interfere with the separation of powers.
The Government consultation papers on judicial review recognised that judicial review is “the rule of law in action” and “a crucial check to ensure lawful public administration”. However the Government have continuing concerns about judicial review. Additionally, in a recent UK High Court case, the court issued a declaration of incompatibility after a challenge to retroactive provisions of the Jobseekers (Back to Work Schemes) Act 2013, which altered the outcome of ongoing legal proceedings in favour of the secretary of state. The Parliament is not precluded from enacting legislation with retroactive effect in civil matters, but cannot interfere with the courts’ handling of disputes.
Click here to read a summary of this case, Reilly (no. 2), on UK Human Rights Blog
Click here to read the House of Lords Select Committee on the Constitution Report (published 4July 2014)
Click here to read the Human Rights Joint Committee Report on the Criminal Justice and Courts Bill