The House of Lords has rejected proposed changes to judicial review introduced with the Criminal Justice and Courts Bill during its Second Reading on 27 October. Part 4 of the Bill concerns judicial review and the most controversial provisions included new costs arrangements for third party interveners and the introduction of costs capping orders, and a higher test for standing of applicants. The Bill will now be returned to the House of Commons to review the amended sections.
The Bill had long been criticised by the UK judiciary, the Joint Committee on Human Rights, legal professional groups, and other organisations. The Joint Committee on Human Rights had issued warnings about Part 4 of the Bill in the past; however the Government was not forthcoming with amendments. On 17 October, the Committee issued a final advisory report which reiterated the warnings about the impact on access to justice and supported the amendments proposed by cross-benchers Lords Pannick, Woolfe, Carlile, and Beecham.
Interveners:
The proposals introduced a presumption that interveners would have to pay their own costs, barring exceptional circumstances. Interveners would be unable to recover costs from the losing party, no matter how meritorious the intervention. Lord Pannick’s amendment was passed, introducing greater judicial discretion to award costs to third parties or protect them from paying costs, in recognition of the importance of third party contributions to public interest cases. The peers voted in favour of this amendment by 219 votes to 186.
Capping of costs:
The Bill finally gives statutory footing for protective costs orders however it also restricts the application for PCOs to after initial permission have been granted. The Joint Committee said the restriction would be a “disincentive to meritorious public interest challenges”. Lord Pannick’s tabled amendment would have allowed for PCO applications to be made at any stage in the proceedings, however it was not passed.
Additionally, PCOs will be restricted to ‘public interest proceedings’ which is defined in the Bill but which can be amended and redefined at any time by the Lord Chancellor. This power was of particular concern to the peers and they voted in favour of removing this power.
Other amendments:
The peers also voted down provisions which would have introduced the compulsory disclosure of financial information for all judicial review applicants and which would have changed the standing test which would have made it more difficult to get leave to apply.
Most of the amendments substituted greater judicial discretion for the proposed absolute judicial duties which the House found to be problematic. The debate lasted five hours and many of the peers raised strong objections to Part 4 of the Bill on the grounds that it would restrict access to justice and discourage worthwhile cases. The debate drew attention to the fact that judicial review originated with the judiciary, not the Parliament, as a means to hold public bodies to account and to ensure legality in decision-making. Additionally, it is the Government and public bodies who are defendants in judicial review cases, so any amendments or restrictions introduced by these same public figures “require the most careful scrutiny by the House.”
Click here to read an article from UK Human Rights Blog.
Click here to read the House of Lords debate.