Professional bodies call on MPs to retain amendments to judicial review reforms

The three main representative bodies for the legal profession have urged MPs to back changes to the Government’s judicial review reforms ahead of a vote next Monday.

Peers last month voted in favour of amendments to Part 4 of the Government’s Criminal Justice and Courts Bill. However, the Government has indicated that it intends to vote those amendments down on 1 December.

The Bar Council, the Law Society and the Chartered Institute of Legal Executives (CILEx) have called on MPs to retain the changes.

Nicholas Lavender QC, Chairman of the Bar Council, said: “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.”

The three professional bodies have raised concerns in particular about measures they said would:

  • Make those who contribute to a fund to bring a judicial review challenge potentially liable for the other side’s fees;
  • Force judges to make interveners pay costs, a move they said could have a “chilling effect”; and
  • Remove the opportunity of seeking judicial review if the court thinks that it is ‘highly likely’ that the Government or other public authority would have come to the same decision, even if it had not acted unlawfully.

On the latter point, the three organisations said: “The importance of judicial review lies not only in its ability to make a difference for individual applicants, but also in the fact that judgments can identify where the Government is behaving unlawfully and clarify the law, irrespective of the outcome for the individual claimant. When the Government has behaved unlawfully, it is right that the courts should be able to say so.”

Frances Edwards, President of CILEx, said: “Raising the no-difference threshold means an authority could escape legal challenge even when they’ve obviously behaved improperly. 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.”

In their briefing to MPs, the legal bodies said: “Restricting judicial review would diminish your constituents’ ability to challenge public authority decision-making on things which matter to them.”