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Criminal Justice and Courts Bill 2014
Report Stage, House of Lords
Briefing in support of amendments relating to judicial review
16 October 2014
For more information, please contact:
Parliamentary lead: Finola Kelly, Head of Parliamentary and Public
Affairs
finola.kelly@equalityhumanrights.com
DD: 0207 832 7826
Legal lead: Nony Ardill, Senior Lawyer
DD: 020 7832 7857
Nony.Ardill@equalityhumanrights.com
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1. Introduction
This briefing supports amendments to provisions in the Criminal Justice
and Courts Bill on judicial review (amendments to Clauses 70, 73, 74, 75
and two proposed new clauses after Clause 78). 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.
Clause 70 - Commission’s recommendation
Support Amendments 146 to 154
Explanation
Clause 70 of the Bill would amend Section 31 of the Senior Courts Act
1981 by requiring the High Court or Upper Tribunal to refuse permission
for judicial review, or withhold a remedy, if they considered it ‘highly
likely that the outcome for the applicant would not have been
substantially different’ had the conduct of the public body concerned not
occurred. Currently, the courts apply a test of 'inevitability'.
This amendment would retain the discretion of the High Court to grant a
remedy, even if the court thinks it highly likely that the outcome for the
applicant would have been substantially the same, had the public body's
conduct not occurred. The amendment would also give discretion to the
High Court or Upper Tribunal, when dealing with an application for leave,
to consider whether the outcome for the applicant would have been
different had the conduct not occurred. The effect of the amendment
would be that, if the court or tribunal decided to take this factor into
account, it may (rather than ‘must’) refuse leave, and only if appeared to
be inevitable (rather than ‘highly likely’) that the outcome would not have
been substantially different.
Our analysis
In its submission to the recent Joint Committee on Human Rights
(JCHR) inquiry into the proposed judicial review reforms,1 the
Commission’s assessment was that the Ministry of Justice proposals
would have a substantial adverse impact on the ability of individuals and
1
Submission of the Equality and Human Rights Commission to the JCHR Inquiry into the implication for access
to justice of the Government’s proposed judicial review reforms, November 2013
2
organisations to hold the state to account, including in relation to
breaches of the European Convention on Human Rights (‘the
Convention’). Our submission also made clear that judicial review is not
a system of appeal, but a process by which the High Court scrutinises
the 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), which
requires public authorities to have due regard when carrying out their
functions to the need to eliminate discrimination, advance equality of
opportunity and foster good relations.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 70 is amended, the courts may find themselves obliged
to reject many judicial review applications which are based on noncompliance 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
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
3
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claim, as parties will need to argue whether the procedural flaw
would make any substantive difference to the outcome.6
Lord Pannick’s amendments to Clause 70:
146
147
148
149
150
151
152
153
154
Page 67, line 30, leave out “must” and insert “may”
Page 67, line 32, leave out “not” and insert “decline to”
Page 67, line 34, leave out “highly likely” and insert “inevitable”
Page 68, line 4, leave out “must” and insert “may”
Page 68, line 6, leave out “highly likely” and insert “inevitable”
Page 68, line 7, leave out “must” and insert “may”
Page 68, line 27, leave out “must” and insert “may”
Page 68, line 32, leave out “highly likely” and insert “inevitable”
Page 68, line 34, leave out “must” and insert “may”
Clause 73 - Commission’s recommendation
Support Amendment 164
Explanation
Clause 73 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,.
This amendment would reverse this presumption, meaning that
interveners would only have to pay the costs of another party in
exceptional circumstances, by reference to criteria set out in the rules of
the court. It also gives the court discretion to order another party to the
proceedings to pay an intervener’s costs.
Our analysis
Clause 73 would have a deterrent effect on prospective interveners. 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.7 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.
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
7 Speech to conference: Judicial review trends and forecasts conference. London 14 October 2013.
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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
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,8 the Commission’s submissions drew
attention to Article 19 of the UN Convention on the Rights of Persons
with Disabilities (the requirement on a State to promote independent
living). The court held that the Secretary of State should have been
made aware of Article 19 in considering the scope of the PSED in
relation to disabled people. Our submissions on the ‘due regard’ duty
under the PSED were also accepted by the court.
 In Detention Action v Secretary of State for the Home Department 9, 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 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 proceedings.
 In R (B) v Director of Public Prosecutions,10 the Commission made
submissions on the obligations on the Crown Prosecution Service
(CPS) under the former Disability Equality Duty. These submissions
were accepted by the court and led to the CPS issuing new guidance
on dealing with vulnerable witnesses and defendants in the criminal
justice system.
As drafted, Clause 73 would appear to risk costs being awarded even
against interveners whose submissions make a significant contribution
to the outcome of the case. The Commission also shares the concern
expressed by the JCHR about the false distinction made in Clause 73
between interveners who apply for permission to intervene and those
8
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin)
10
R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin)
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who are invited to do so. The latter would not face the same
presumption on costs.
Lord Pannick’s amendment to Clause 73
164
Page 70, line 21, 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.”
Clause 74 - Commission’s recommendation
Support Amendments 166 to 168
Explanation
Clause 74 of the Bill would impose restrictions on the ability of the High
Court and the Court of Appeal to award costs-capping orders (otherwise
known as protective costs orders) in judicial review cases which are in
the public interest. In particular, Clause 74(3) provides that a costscapping order can only be made once the court has already granted
permission to apply for judicial review.
The amendment would remove this restriction, so allowing the court to
continue granting costs-capping orders in cases where permission has
not yet been granted. The amendment would also delete Clauses 74(4)
and 74(5), which permit court rules to specify information that an
application for a costs-capping order must contain. In addition, the
amendment would delete Clause 74(6)(c) which allows the court to
make a costs-capping order only if, without one, the applicant for judicial
review would withdraw and it would be reasonable for them to do so.
Finally, the amendment would delete Clause 74(9) to 74(11); these are
regulation-making powers which would allow the Lord Chancellor to
amend the criteria that the court must take into account when
considering whether a judicial review is in the public interest.
Our analysis
We consider that the Bill’s various limitations on costs-capping orders
risk restricting access to the courts for judicial review applications
engaging human rights or the Equality Act 2010 – including the PSED.
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In some cases this might amount to a breach of Article 6(1) (the right to
a fair trial) or Article 13 (the right to an effective remedy for a breach of
Convention rights) of the Convention.
Restricting costs-capping orders to claims where permission has been
already been granted is a matter of particular concern. We note the
submission made by the Bingham Centre for the Rule of Law in its
supplementary written evidence to the JCHR:
‘Cases may have pre-permission costs that comfortably exceed
£30,000. The risk of unknown and potentially substantial prepermission costs is a risk that those who would otherwise qualify
for costs protection cannot possibly take. If a [protective costs
order] cannot be obtained to protect against such a costs risk, very
many claims with substantial wider public interest will not be
brought.’11
Lord Pannick’s amendments to Clause 74:
166 Page 71, line 11, leave out subsections (3) to (5)
167 Page 71, line 30, leave out paragraph (c)
168 Page 71, line 44, leave out subsections (9) to (11)
Clause 75 – Commission’s recommendation
Support Amendments 170 to 173
Explanation
Clause 75 sets out mandatory criteria that the court must take into
account when considering whether to make a costs-capping order and
when setting the terms of such an order. The amendment would remove
the obligation on the court to consider these criteria, as well as modifying
the criteria so that only actual financial support from another person
(rather than potential support) would need to be considered. The
amendment would also delete Clauses 75(3) to 75(6), which allow the
Lord Chancellor to amend the criteria by regulation.
Our analysis
In our submission to the Ministry of Justice consultation on further
reforms to judicial review, the Commission argued that the court should
11
Bingham Centre for the Rule of Law, supplementary written evidence (12 February 2014), para. 24.
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retain full discretion in relation to costs-capping orders.12 Costs capping
orders are only likely to be granted if the judicial review application has a
realistic prospect of success and has been made by a claimant with
limited resources who is challenging, in the public interest, the decision
of a public body with superior resources. It is this imbalance of resources
which has prompted the courts to develop the costs-capping procedure
to allow issues of public importance to be resolved, which in turn
encourages public bodies to exercise their powers properly in order to
avoid legal challenges. We consider that it would be inappropriate to
fetter the court’s discretion by requiring it to take particular matters into
account. Further, we do not consider it appropriate to include regulationmaking powers which could make costs-capping orders even more
difficult to obtain.
Lord Pannick’s amendments to Clause 75:
170
171
172
173*
Page 72, line 25, leave out “must” and insert “may”
Page 72, line 29, leave out “, or may provide,”
Page 72, line 33, leave out “, or may provide,”
Page 72, line 44, leave out subsections (3) to (5)
First New Clause after Clause 78 – Commission’s recommendation
Support Amendment 176.
Explanation
This New Clause would prevent the Lord Chancellor from using powers
under sections 2 or 9 of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 to impose further restrictions on legal aid for any
stage of judicial review. This New Clause would bite on any restrictions
already made under these powers, which would cease to have effect in
relation to legal aid for judicial review.
Our analysis
Since the coming into force of the Civil Legal Aid (Remuneration)
(Amendment) (No. 3) Regulations 2014 on 22 April 2014, lawyers are
only guaranteed payment from legal aid for preparing and submitting an
application for judicial review if permission is granted by the court to
12
October 2013 response to Ministry of Justice consultation paper: Judicial review – proposals for further
reform http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/consultation-responses
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proceed. The Commission raised concerns about the impact of this
restriction in our response to the Ministry of Justice 2013 consultation on
further reforms to judicial review13 and reiterated these concerns in a
subsequent submission to the JCHR.14
The Ministry of Justice modified its original proposal by introducing
discretion for the Legal Aid Agency to pay claimants’ solicitors in cases
which conclude before a permission decision by the court, where costs
have not been agreed as part of a settlement. However, solicitors still
face financial risks because of uncertainty about whether or not the case
will be given permission by the court; whether the defendant will
concede the case before permission is granted; whether the defendant
will agree to pay costs as part of a settlement agreement; whether the
court will order costs following a costs hearing; and, finally, whether the
Legal Aid Agency will use its discretionary powers to pay the claimant’s
costs.
The new Regulations also make it difficult to accommodate ‘rolled up’
judicial review hearings – where the question of permission is adjourned
to be decided at the same time as the substantive claim. Claimants’
lawyers will want to avoid the risk of preparing the whole case without
knowing whether permission will be granted. While ‘rolled up’ hearings
can be a cost efficient use of the court’s time, judges will be mindful of
the increased financial risks for claimants and may be unwilling to list
legally-aided cases in this way.
Taking all these factors into account, the Commission’s analysis
suggests that the Civil Legal Aid (Remuneration) Regulations may well
deter applicants from making important judicial review applications in
cases which would have good chances of success. This could have a
negative impact on access to justice, raising concerns about compliance
with Article 6 of the Convention (right to a fair trial) and access to justice
for victims of breaches of other Convention rights. It may also have an
impact on individuals’ ability to bring judicial reviews based on alleged
breaches of the PSED.
13
Equality and Human Rights Commission response to Ministry of Justice consultation on further reforms to
judicial review (November 2013) http://www.equalityhumanrights.com/legal-and-policy/our-legalwork/consultation-responses
14
Equality and Human Rights Commission submission to Joint Committee on Human Rights inquiry into the
implications for access to justice of the Government’s proposed judicial review reforms (November 2013)
http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/consultation-responses
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Lord Pannick’s first New Clause after Clause 78
176 Insert the following new Clause—
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of
the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to
impose further eligibility criteria for receipt of legal aid, or further to
restrict the scope of legal aid, for judicial review proceedings (including
applications for permission to apply for judicial review).
(2) Any statutory instrument made or to be made under the provisions
referred to in subsection (1) and which otherwise conflicts with the
restrictions set out in that subsection ceases to have effect in relation to
legal aid for such proceedings.”
Second New Clause after Clause 78 – Commission’s
recommendation
Support Amendment 177.
Explanation
The Government intends, through regulations, to introduce a residence
test for civil legal aid. This would limit legal aid to people who are lawfully
resident in the UK and those who have, at some point in the past, been
continuously resident for at least 12 months.15 The effect of Amendment
177 would be to disapply the residence test for judicial review
applications.
Our analysis
The Commission commented on the proposed residence test in our
recent report for the mid-term point of the Universal Periodic Review
cycle.16 Concerns have also been raised by the Joint Committee on
Human Rights who consider that the UK Government has not given full
consideration to its international human rights obligations.17 It is arguable
15
There has been a successful legal challenge to the test, which is now subject to appeal. R. (Public Law
Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin). Meanwhile, introduction of the test has been
delayed.
16
http://www.equalityhumanrights.com/publication/universal-periodic-review-mid-term-report-0
The UK Parliament’s Joint Committee on Human Rights has suggested the UK Government may not have
given consideration to its obligations under Article 2 of the UNCRC – Joint Committee on Human Rights (2013).
17
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that the residence test would unjustifiably discriminate against certain
non-UK nationals who have grounds for judicial review applications
which otherwise have good prospects of success. This is potentially a
violation of Article 6(1), read with Article 14 of the ECHR.18
Whilst there are some exceptions to the residence test, many vulnerable
groups may still be unable to satisfy it. These include unaccompanied
migrant children, including those who are disabled or have special
educational needs; victims of trafficking whose status is disputed; victims
of domestic violence without proof of abuse; and refused asylum
seekers.
The proposed residence test could also impact on people outside the UK
(including foreign nationals) who want to bring judicial review
proceedings relating to alleged human rights abuses by the UK
government. The test risks preventing litigation of the highest
constitutional importance involving the unlawful killing or improper
treatment of overseas nationals by UK troops.19 It could also exclude
from potential redress UK residents who are outside the UK when they
become the victim of unlawful actions.20
Lord Pannick’s second New Clause after Clause 78
177 Insert the following new Clause—
“Civil legal aid in relation to judicial review: residence test
A residence test may not be applied to an individual who applies for
legal aid in relation to judicial review proceedings (including applications
for permission to apply for judicial review).”
The implications for access to justice of the Government’s proposed legal aid reforms: www.justice.org.uk/
data/files/resources/349/JUSTICE-JCHR-Submission-FINAL-27-September-2013.pdf
The EHRC’s response to the Joint Committee on Human Rights Inquiry into the implications for access to
justice of the government’s proposed judicial review reforms covers its analysis of the residence test:
www.equalityhumanrights.com/legal-and-policy/consultation-responses/inquiry-into-the-implications-for-accessto-justice-of-the-government-s-proposed-judicial-review-reforms/
18
Examples include: R. (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; R. (Alaa’ Nassif Jassim Al
Bazzouni) v The Prime Minister & Others [2011] EWHC 2401 (Admin), [2012] 1 WLR 1389; Ali Zaki Mousa v
Secretary of State for Defence [2013] EWHC 1412 (Admin).
19
20
For example, the Binyam Mohammed litigation, which concerned UK residents who were kept out of the
country as victims of unlawful rendition and detention abroad: R. (Binyam Mohamed) v Secretary of State for
Foreign and Commonwealth Affairs [2010] EWCA Civ 65
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2. 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.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
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