A further barrier to justice

Jeremy Beecham on the government’s plans, in the face of wide opposition, to narrow the scope of judicial review

The past four years have seen the Coalition government put major roadblocks in the way of access to justice. 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice. And the results have been stark.

We have seen the collapse of law centres, extreme pressure on advice agencies, and expense and delays caused by litigants unable to receive legal advice in person when preparing or presenting their case. The insurance industry and employers have benefitted from changes to personal injury law and the imposition of charges for employment tribunal claims, leading to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.

Perhaps the most insidious changes however, are those in which Ministers seek to narrow the scope of judicial discretion, especially in cases where the lawfulness of decisions made by government itself or other public agencies is challenged through judicial review (JR). The Criminal Justice and Courts Bill, which is back in the House of Lords today, seeks deliberately to make it more difficult, and potentially more expensive, for citizens (either as individuals or represented by a charity) to seek a ruling from the Courts on whether such decisions were properly  made.  

While individuals already have first to obtain the leave of the Court to bring a case of this nature, various financial barriers will now have to be overcome if the government’s plans are not amended. Applicants will need to disclose “the source nature and extent of financial resources available or likely to be available” to them before pursuing a case. Interveners, very often charities, who obtain leave to provide evidence or make representations will have to make similar disclosures; and barring exceptional circumstances will not be able to recover their costs.

Costs can of course be prohibitive for an individual or charity, and to date the Court has been able to make an order capping the liability to pay the other side’s costs. The Bill removes this protection from the initial stage of seeking leave so it only applies if that is granted. But even then the new rules on ‘available’ resources will apply, with other tests that may also deter intervening.

To listen to the Lord Chancellor, Chris Grayling one would imagine that the courts are overrun with applications for JR from meddlesome pressure groups with a political agenda. In fact, campaigning organisations have brought all of 50 cases in 13 years – some 3% of the total. This figure is not much higher than the proportion of government backbenchers who spoke in favour of the proposals during the Committee stage of the Bill.

Grayling’s proposals have been roundly condemned by the Constitution Committee, the Delegated Powers Committee and the Joint Committee on Human Rights. Among many other observations, the latter said of his remarks: “such politically partisan reasons for restricting access to judicial review in order to reduce the scope for it to be used by the Government’s political opponents do not qualify as a legitimate aim”. And only this morning, eleven Police and Crime Commissioners wrote to The Times warning of the “deep injustice” that it could bring.

In political terms, it will be interesting to see where LibDem peers end up on the issue. To their credit they have voiced opposition to their Coalition partners’ proclaimed intention to dismantle the Human Rights Act. Their credibility in this similar area will be tested in the lobbies tonight.

Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords. He tweets @JeremyBeecham

Published 27^th October 2014