Response to the Ministry of Justice Consultation on
Further Reform of Judicial Review
The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights andan end todiscrimination based on age, disability, gender and gender identity, race, religionor belief, and sexual orientation[1]. Further information about our work is available at www.edf.org.uk and a list of our members is attached.
Our member organisations represent people who have any or all of the characteristics protected in the Equality Act 2010 and one of our key concerns is that each should have access to equal rights of access to justice regardless of their age, disability, gender and gender identity, race, religionor belief, and sexual orientation (unless there is a good reason why this is not appropriate).
The Equality and Diversity Forum (EDF) considers that Judicial Review is a vital remedy and one of the most important ways for citizens to hold Government and other public bodies to account. We note that the Ministry of Justice in its foreword to this consultation has said that Judicial Review (JR) is ‘a crucial check to ensure lawful public administration’. This is a widely held view, Lord Dyson, now Master of the Rolls said – ‘there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review’.[2] The power to judicially review public decisions is an important reserve power enabling citizens to ensure good governance and further constraints on its use should be approached with very considerable caution.
Similarly the President of the Supreme Court, Lord Neuberger in his Tom Sargent Memorial Lecture observed in relation to JR -
‘The desire to discourage weak applications is understandable, even laudable, and the desire to reduce delay and expense is plainly right, at least in principle. However, one must be very careful about any proposals whose aim is to cut down the right to JR. The courts have no more important function than that of protecting citizens from the abuses and excesses of the executive – central government, local government, or other public bodies. With the ever-increasing power of Government, which now commands almost half the country’s GDP, this function of calling the executive to account could not be more important.’[3]
Members of the EDF are extremely concerned that these proposed changes will have a seriously chilling and adverse effect on the availability of JR. We therefore consider that any further constraints on the application of JR are undesirable.
The reason given in the Consultation Paper for seeking to limit access to Judicial Review is the fact that ‘the use of judicial review has expanded massively’. The chart showing the number of judicial review applications for permission on page 8 (chart 1) shows a significant increase between 2007 and 2012 of immigration and asylum cases but the increase in all other civil cases has gone from about 2,000 in 2007 to 2,700 in 2012 we would query whether this is aptly described as a ‘massive expansion’ justifying the erosion of rights for non-asylum/immigration civil cases proposed in this consultation.
Standing
Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples?
No. There is already a test for who can bring JR cases: all applicants have to show that they have ‘sufficient interest’ in the matter in question. We do not consider that cases brought by charities, NGOs and interest groups should be classified as having no direct interest. Furthermore, recent research published by the Public Law Project has identified that between July 2010 and February 2012 the vast majority of cases (77%) were brought by individuals and only 3% of the JR cases brought were brought by interest groups and charities.[4] This amounted to 16 cases in 20 months rather than the 50 cases a year suggested in the Consultation Paper.
Indeed, the premise that underpins this question is wrong. For any charity to take legal proceedings they must have an interest in the matter sufficient to ensure that they are acting within their charitable objects and not acting ultra vires. The suggestion that such charities and NGOs commonly have no little or no interest in the matter is misplaced. If they had no interest in the matter then as a charity they would have no power to act as to do so would go beyond their charitable objects. It is not for the Government or MoJ to determine whether a charity or other NGO has standing.
Moreover, government and government departments often wish to limit the potential of legal challenge. Parliament should be most suspicious of attempts to hinder the holding to account of such bodies. The courts and the Charity Commission have sufficient and proper legal powers to challenge the activities of bodies acting beyond their legitimate powers and charitable objects.
The role of JR is to correct public law wrongs. This is of vital constitutional importance. All members of society have an interest in the proper administration of executive power and it is for this reason that access to judicial review should be not restricted to those most directly affected by the matter at hand:
‘Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for [permission to bring judicial review], the court’s only concern is to ensure that it is not being done for an ill motive.’[5]
The EDF considers that the role of bodies such as those we have mentioned in bringing public law issues before the court is a really important aspect of a vibrant and successful civil society. This is something to be cherished and admired and is the hall mark of a confident and successful society. The courts are careful to avoid abuse of this. They will and frequently do refuse permission to bring proceedings where they are not convinced that an interest is sufficient.
Additionally, if the proposed changes to legal aid set out in chapter 7 of the Consultation Paper are implemented then any directly affected person dependent on legal aid would find it very difficult to find a solicitor willing to start proceedings for him/her. The combined effect of these two proposals will be to ensure that JR is only accessible to individuals with significant assets.
Question 10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options?
We do not consider that the Government should legislate to amend the current test for standing – namely the ‘sufficient interest’ test – as we have set out in our answer to question 9.
Question 11: Are there any other issues, such as the rules on interveners, we should consider in seeking to address the problem of judicial review being used as a campaigning tool?
We do not accept the premise that judicial review is being used as a campaigning tool and have seen no evidence to support this contention. We do not accept that interveners are a ‘problem’ in relation to JR and note that no evidence of this has been presented in the consultation paper.
The role of interveners is to assist the Court. They are only permitted to intervene with the permission of the Court because the Court considers that they have something to add to the legal argument. Indeed it has been made entirely clear by Lord Hoffmann in E (A Child) v. Chief Constable of the Royal Ulster Constabulary [2009] 1 A.C. 536 at [2] – [3] that interventions should not be made unless they make a material additional point in the case. This is an example of the court taking a strong line to prevent irrelevant or immaterial interventions. The Court would not permit them to intervene in order to further a ‘campaign’. See also the answer to question 32.
The Public Sector Equality Duty and Judicial Review
Question 17: Can you suggest any alternative mechanisms for resolving disputes relating to the PSED that would be quicker and more cost-effective than judicial review? Please explain how these could operate in practice.
We have considered alternatives to JR as a remedy for breaches of the PSED and we have not been able to think of any that would be appropriate and not lead to even further delays in the process of decision making. Any tribunal system would be subject to greater delays than are experienced by the High Court and would not have powers equivalent to those exercisable by the High Court.
Question 18: Do you have any evidence regarding the volume and nature of PSED-related challenges? If so, please could you provide this.
We note that the consultation document at page 30 observes that –
‘The review also found that, even where a court has ruled that a public body has failed to comply with the PSED, often it only orders that body to re-take the decision. It is not uncommon for the body to arrive at the same conclusion following further work to demonstrate it had discharged the duty effectively.’
We have surveyed all the cases of Judicial Review where the Public Sector Equality Duty in section 149 of the Equality Act 2010 is considered (summarised in Annex 1). In six of these cases the High Court granted an application for JR and in only one of these cases did the public authorities concerned reach the same decision after further consideration of their equality duties. One instance out of six cannot reasonably be called ‘not uncommon’ and we therefore conclude that the analysis in the consultation paper is flawed.
Of course, it is also important to recognise the limits of the courts power in Judicial Review cases. They have no power to re-take decisions or say what a decision should be. They can only say that the way in which a decision was reached was unlawful. It is then up to the decision-maker to consider the relevant facts and re-take the decision, it may be the same or it may be different, but it should have taken all the relevant factors into account.
It should also be remembered that many more potential problems are identified and issues raised with public bodies in pre-action correspondence than ever reach the Courts.[6] This is because once a potential breach of section 149 is identified and correspondence with the public body commenced many public bodies will acknowledge the problem and will put corrective action in place either before or after permission hearing takes place. This not only benefits an individual claimant but may benefit other people in a similar position.
For example, Patricia Johnson, a parent, commenced a Judicial Review against the Department for Education (DfE) alleging that it had neglected to consider its Public Sector Equality Duty when it rejected an application from Diaspora High School (DHS) to become a free school in Lewisham. Following the permission hearing the DfE decided to amend the process of assessing applications for free school status. The DfE representative said -
‘This claim has also prompted the Department to look again at its processes, as part of the existing process of continuing self-criticism and improvement.’[7]
Rebalancing Financial Incentives
Paying for permission work in judicial review cases
Question 19: Do you agree that providers should only be paid for work carried out on an application for judicial review in cases either where permission is granted, or where the LAA exercises its discretion to pay the provider in a case where proceedings are issued but the case concludes prior to a permission decision? Please give reasons.
The EDF does not agree with this proposal. This is exactly the kind of proposal that falls foul of the strictures of Lord Neuberger that we have already cited.
If this proposal goes ahead, it will create a situation where individuals will not be able to bring cases challenging the decisions of local authorities or central government because they will not be able to find lawyers willing to take the risk of not getting paid for this work. This will have the result that lawyers will stop doing this type of work and people facing injustice because of public law failings by public bodies will find it increasingly difficult to find anyone to advise them.
It is neither reasonable nor sensible to expect individuals to take judicial review action without legal advice. Litigants acting without advice are more likely to take cases that will not succeed, whatever their intrinsic merits, because the case has not been adequately prepared. They are also more likely to take weak cases which might have been deterred by good legal advice at the outset.
Any lawyer who did bring these challenges to court would have to pursue the court proceedings to make sure they were paid for their work. This would create a perverse incentive for cases to be pursued in court even when the initiation of judicial review is sufficient to persuade a public body to acknowledge its error and reconsider a decision (and there is ample evidence that this happens regularly). Instead of fighting in court about public law failures, lawyers will end up having an incentive to fight cases rather than to reach an early resolution which will waste court time, cost public funds and risk action being taken which is not necessarily driven solely by what is in a client’s best interests. We do not believe that this is good value for money nor does it assist the Government’s objective of securing early settlement and preventing litigation wherever possible.