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Criminal Justice and Courts Bill 2014
Ping Pong stage, House of Lords
Briefing in support of retaining certain House of Lords
amendments relating to judicial review
9 December 2014
For more information, please contact:
Parliamentary lead: Finola Kelly, Head of Parliamentary and Public
Affairs
finola.kelly@equalityhumanrights.com
DD: 0207 832 7826
Mob: 07932 799 120
Legal lead: Nony Ardill, Senior Lawyer
Nony.Ardill@equalityhumanrights.com
DD: 020 7832 7857
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1. Introduction
This briefing is in support of retaining the House of Lords amendments
to Clauses 64 and 67 of the Criminal Justice and Courts Bill. These
amendments would help preserve the discretion of the courts in relation
to judicial review.
As the regulator of the public sector equality duty (PSED) and a National
Human Rights Institution, the Commission is concerned that judicial
review should remain an effective mechanism for access to justice. It is
particularly important that it is available to ensure public authorities’
compliance with the PSED and the Human Rights Act 1998, and that the
courts do not lose the potential benefits of third party interventions in
such cases.
2. Likelihood of substantially different outcome for applicant
Clause 64 – Commission’s recommendation
Support Lord Pannick's Amendment 102(B)
Explanation
Clause 64 of the Bill would amend Section 31 of the Senior Courts Act
1981. As currently drafted, Clause 64 would require permission for
judicial review to be refused, or a remedy to be withheld, if the High
Court or Upper Tribunal considered it ‘highly likely that the outcome for
the applicant would not have been substantially different’ if the conduct
of the public body that is the subject of the case had not occurred.
Currently, the courts apply a test of 'inevitability'.
The purpose of Lord Pannick's amendment is to retain the discretion of
the court or tribunal to give permission for judicial review, or to grant a
remedy, where it considers it is in the public interest to do so in all the
circumstances of the case.
Our analysis
In its submission to the recent JCHR inquiry into the proposed judicial
review reforms,1 the Commission made clear that judicial review is not a
system of appeal, but a process by which the High Court scrutinises the
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lawfulness of decisions made by public bodies. It is in the public interest
to ensure that administrative decisions are taken lawfully. Remedies in
judicial review are always discretionary: for example, the court can
declare a decision to be unlawful but refuse to quash it.
The lawfulness of decision-making by public bodies is particularly
relevant to enforcement of the public sector equality duty (PSED). This is
of interest to the Commission given its statutory role in regulating the
duty. The PSED requires public authorities to have due regard to the
need to eliminate discrimination, advance equality of opportunity and
foster good relations when carrying out their functions.2 It is a duty to
consider, rather than a duty to achieve any particular outcome.
In the case of Bracking,3 the Court of Appeal confirmed the central role
of the PSED within policy formulation and emphasised that failing to
comply with it would make a decision unlawful:
‘It seems to me that if a decision is reached without due regard to
the PSED then it is an unlawful decision and, subject to any
overarching discretionary features, the decision should be
quashed.’ (per Lord Justice McCoombe, para 69)
Unless Clause 64 is amended, the courts may find themselves obliged
to reject many judicial review applications based on non-compliance with
the PSED. This would undermine the enforceability of the duty and its
effectiveness ‘as an integral and important part of the mechanisms for
ensuring the fulfilment of the aims of anti-discrimination legislation’.4
The Commission also shares two other concerns raised by the JCHR:
 The lowering of the threshold from 'inevitable' to ‘highly likely’ may
give rise to breaches of the right of access to court under Article
6(1) of the Convention.5
 The lower threshold risks turning the permission stage of judicial
review proceedings into a full dress rehearsal of the substantive
claim, as parties will need to argue whether the procedural flaw
would make any substantive difference to the outcome.6
2
Section 149 of the Equality Act 2010
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
4 Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, para
26
5 Joint Committee on Human Rights; The implications for access to justice of the Government’s
proposals to reform judicial review; Thirteenth Report of Session 2013-14. Para 44
6 Ibid para 46. This concern has also been raised by the Constitution Committee in its report on the
Criminal Justice and Courts Bill, 2nd July 2014
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Amendment 102B
Page 65, line 46, at end insert—
“( ) The duties of the court or tribunal under section 31(2A), (3B) and
(3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of
the Tribunals, Courts and Enforcement Act 2007, are subject to the
discretion of the court or tribunal to act otherwise where it considers it
in the public interest to do so in all the circumstances of the case.”
3. Interveners and costs
Clause 67 - Commission’s recommendation
Retain House of Lords Amendment 107
Explanation
Clause 67 of the Bill establishes a presumption that interveners in a
judicial review would, unless there are exceptional circumstances, pay
any costs incurred by another party as a result of the intervention.
Amendment 107 to Clause 67, tabled by Lord Pannick and passed by
the House of Lords at Report stage, would remove this presumption and
give discretion to the court whether to order an intervener to pay the
costs of a party to the proceedings, and similar discretion whether to
order a party to pay the costs of the intervener.
The House of Commons disagreed with Amendment 107, and has
proposed to the House of Lords an alternative amendment to Clause 67
(Amendment 107B) that would require the court to order an intervener to
pay costs if any one of four conditions was met:
 The intervener has acted, in substance, as one of the principal
parties to the case
 Taken as a whole, the intervener’s evidence and representations
‘have not been of significant assistance to the court’
 A significant part of the intervener’s evidence and representations
was not relevant to resolving the issues in the proceedings
 The intervener has behaved unreasonably
Our analysis
The House of Commons alternative amendment (Amendment 107A)
does not meet the concerns raised in the House of Lords at report stage.
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If any one of the four proposed conditions were to be met, the court
would have an obligation, rather than discretion, to make an order for
costs against the intervener.
At the hearing of a case, particularly one that is legally or factually
complex, parties cannot always predict what evidence or arguments will
find favour with the court. There may be circumstances where, for
example, the intervener contributed important evidence or legal
arguments that strongly influenced the outcome of the case, alongside
other evidence or representations that it did not prove necessary for the
court to consider. In this situation, the court would be obliged to make a
costs order against the intervener in spite of the assistance given to the
court by other parts of the intervention. This risk is likely to have a
deterrent effect on prospective interveners.
Amendment 107 was supported by the Joint Committee on Human
Rights (JCHR) in its second report on the Bill.7 The JCHR noted that this
amendment achieves the objective of the recommendation set out in its
first report on the Bill8 – that is, to restore the judicial discretion that
currently exists. In its first report, the JCHR also expressed concern
about the false distinction that this clause makes between interveners
who apply for permission to intervene and those who are invited to do
so, as the latter category would not face the same presumption on costs.
The potential value of interventions in assisting the court has been
acknowledged by the Rt Hon the Baroness Hale, Deputy President of
the Supreme Court.9 The parties to a judicial review may not have the
resources, perspective or expertise to provide all the information
relevant to determining the issues, especially where the impact of the
judgment could extend beyond the facts of the case. During the Report
stage debate in the House of Lords, there appeared to be no dispute
that interventions by third parties assist the court by providing
information.
The Commission has given assistance to the court through many of its
own interventions. In our first six years of operation (to November 2013),
we intervened in 27 cases in the High Court. Our interventions in all the
22 concluded cases added value, and in 14 of these cases our
intervention had a particularly substantial influence on the proceedings.
This included cases where, in our assessment, the judgment adopted or
JCHR, Second Legislative Scrutiny Report of Session 2014 – 15; paragraph 2.56
JCHR, Thirteenth Report of Session 2013-14: The implications for access to justice of the
Government’s proposals to reform judicial review; paragraph 93
9 Speech to conference: Judicial review trends and forecasts conference. London 14 October 2013.
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reflected our submissions or our intervention helped to encourage a
settlement.
The following examples illustrate how the Commission’s interventions
have had an impact on the outcome of judicial reviews:
 In the case of Bracking,10 the Commission’s intervention drew
attention to Article 19 of the UN Convention on the Rights of Persons
with Disabilities (the requirement to promote independent living). The
court held that the Secretary of State should have been made aware
of the UK’s obligations under the Convention, in particular Article 19,
as this should inform the scope of the Public Sector Equality Duty
(PSED) with respect to disabled people. Our submissions on the ‘due
regard’ duty under the PSED were also accepted by the court.

In the case of L &Ors,11 the Commission intervened in four linked
child trafficking cases. The cases considered whether the Competent
Authority, the Police and the Crown Prosecution Service (CPS) had
carried out an adequate investigation into whether the accused were
victims of trafficking and so whether the prosecutions should have
proceeded. The court recognised the value of our intervention, in
which we highlighted the importance of the Convention on the Rights
of the Child and Article 4 of the European Convention on Human
Rights (freedom from slavery). We argued that a child should only be
prosecuted if it is in their best interests – or the damage to their best
interests is justified by other weighty considerations.
The court held that suspicions of trafficking must be properly
investigated and that it has the power to discontinue or stay a
prosecution where there has been an inadequate investigation, or
none took place. The best interests of the child are of primary
importance but do create immunity from prosecution.
As a result of this decision, CPS guidance was changed.
 In Detention Action v Secretary of State for the Home
Department, 12 a judicial review concerning the detained fast track for
asylum seekers, the NGO claimant accepted that it did not have
‘victim’ status under the Human Rights Act 1998, and so could not
rely on alleged violations of the human rights of others. Through our
10
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
L &Ors [2013]EWCA Crim 991
12 Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin)
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intervention, we were able to advance arguments relating to potential
breaches of Article 5 of the Convention (right to liberty), which had a
demonstrable impact on the outcome of the proceedings.
Clause 67 does not appear to apply to Scotland or Northern Ireland. In
the debate at the House of Lords Report stage, Lord Lester of Herne Hill
commented on this discrepancy:
“Unless I am completely wrong, we are now in the curious position
that the Northern Ireland Human Rights Commission will be able,
with its very limited budget, to be a third-party intervener without
this costs effect, whereas the Equality and Human Rights
Commission, for example, with its limited budget, will not be in the
same position. That seems arbitrary and it will make it harder for
our senior judiciary to be helped by third parties, which is the
whole object of the third-party intervention.” [House of Lords
Hansard, 27 October 2014, Column 994]
House of Lords Amendment 107
Page 67, line 25, leave out subsections (2) to (6) and insert –
“( ) The High Court and the Court of Appeal shall have a
discretion whether to order an intervener to pay the costs of
a relevant party to the proceedings, and shall have a
discretion whether to order a relevant party to the
proceedings to pay the intervener’s costs.”
4. About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body
established under the Equality Act 2006. It is an independent body
responsible for promoting and enforcing the laws that protect fairness,
dignity and respect. It contributes to making and keeping Britain a fair
society in which everyone, regardless of background, has an equal
opportunity to fulfil their potential. The Commission enforces equality
legislation on age, disability, gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, sex and
sexual orientation. It encourages compliance with the Human Rights Act
1998 and is accredited by the UN as an ‘A status’ National Human
Rights Institution.
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Find out more about the Commission’s work at:
www.equalityhumanrights.com
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