Lords Constitution Committee raises concerns on proposed changes to judicial review

• Criminal Justice and Courts Bill (HTML)
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• Select Committee on the Constitution

Key findings

The committee questions the Government’s position that judicial review "has expanded massively", pointing out that once immigration cases are removed the number of applications for judicial review has increased modestly. Immigration cases have now been removed from the jurisdiction of the High Court and transferred to the Upper Tribunal.

The report brings to the attention of the House the possibility that clause 64 of the bill, which provides that courts must refuse an application for a judicial review if it appears highly likely that the “outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This is a change from the current criterion that the courts should only refuse an application if it is inevitable that the conduct complained of would have made no difference to the result. The committee says this raises issues of principle and practical concern and “risks unlawful administrative action going unremedied”. It invites the House to consider whether clause 64 “risks undermining the rule of law.”

Other findings

• The report states that the bill risks turning the permission stage of the judicial review process into a “full dress rehearsal” of the substantive stage, which could have the effect of increasing costs, not lowering them as the Government intend.
• The report draws attention to clauses 67 to 70, which cover the legal costs that may be imposed on third-party interveners in judicial reviews. The committee suggests that the House may want to consider whether the proposals “impose too great a limit on effective access to justice.”
• The committee also considers clause 46, which would make it easier for appeals from the High Court to “leapfrog” the Court of Appeal and proceed directly to the Supreme Court. Rather than requiring the agreement of all sides a case could be leapfrogged if the judge agrees to an application from one party, so long as certain tests are satisfied.

Chairman

Lord Lang of Monkton, chairman of the House of Lords Constitution Committee, 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. We have therefore invited the House to consider the bill in the context of the need to uphold the rule of law.

“We have suggested that the House of Lords will want to consider carefully several aspects of the bill. Areas the House may want to focus on are the tightening of the criteria for granting judicial reviews, changes to the rules on the legal costs of interveners in judicial reviews, and proposals to make it easier for cases to “leapfrog” the Court of Appeal and go directly to the Supreme Court. In these areas the House may want to consider whether the proposals risk undermining access to justice or weakening the ability of citizens to challenge decisions of government or state agencies.”

Further information

• About Parliament: Select Committees
• Visiting Parliament: Select Committees