Civil society analyses new judicial review procedures in the UK

In April 2015, wide-ranging reforms to judicial review procedure in the UK were introduced by Part 4 of the Criminal Justice & Courts Act 2015. A collaborative analysis of Part 4 has been performed by civil society groups JUSTICE, the Public Law Project and the Bingham Centre for the Rule of Law. The report, including a foreword by Lord Woolf, has recently been launched.

A number of MPs, including Lord Woolf, strongly opposed the Bill on its passage through Parliament. Lord Woolf contends in his foreword to the report that the Act is unnecessary and provides greater deterrence than is necessary. He further speaks of his ‘fears for damage to the rule of law’ and urges those applying Part 4 to interpret it in a manner which least interferes with the rule of law.

Part 4 establishes four main areas of reform:

1)      The ‘highly likely’ test

Section 84 of the Act imposes a duty on the court to refuse an application for judicial review where the outcome would be ‘highly likely’ to make no substantial difference for the applicant. The Report notes, however, that the common law has always recognised the courts’ discretion to deny judicial review in cases where a challenge could have made no material difference to the outcome in an individual case. The authors urge a ‘highly cautious’ approach to the test with the court only refusing an application for judicial review if it can confidently conclude, without detailed inquiry, that the highly likely test is met.

2)      Financial disclosure

Sections 85-86 require judicial review applicants to disclose how their claim is being funded before their application can proceed. The report warns of the potential chilling effect of this measure and notes that the obligation will have to be applied in a manner consistent with the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR) and the right of access to the courts under Article 6 of the ECHR.

3)      Interveners and costs

Section 87 imposes a new duty on the court to award costs against interveners where specified criteria are satisfied. The conditions include where the intervener has acted in substance as the sole or principal party; where their evidence and representations have not been of significant assistance to the court; where a significant part of the intervention related to matters that it is not necessary for the court to consider; or where the intervener has behaved unreasonably. The report urges a liberal interpretation of this provision as it notes that ‘[t]o ignore the significantly higher deterrent effect of a potential costs order on the voluntary and not for profit sector would substantially limit the ability of the court to hear reasonable, helpful interventions, a result inconsistent with the intention of Parliament.’

4)      Protective costs orders

Sections 88-89 provide a statutory footing for protective costs orders.  The Report expresses concern that any new criteria which operate to undermine the ability of the court to provide costs protection in public interest cases must be subject to question.

Click here to read the report in full.

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