Government proposals to cut the use of judicial review may reduce the accountability of public authorities, the Law Society has said.
It was responding to the publication of what justice secretary Chris Grayling described as a ‘strong’ package of reforms to limit the number and length of JR cases.
Under the reforms, third parties who join in a JR case as ‘interveners’ will have to ‘pay their own way’. The use of protective costs orders, limiting a party’s costs liability in relation to the other side’s legal costs, will be restricted to ‘exceptional cases with a clear public interest’.
However, Grayling’s plan marks a retreat from several proposals in last year’s consultation on the subject. The government has decided not to restrict the ability of third parties to apply for judicial review, but it will require disclosure of the identity of anyone financially backing a claim.
The Ministry of Justice also backed down on proposals to pay lawyers working on the ‘permission stage’ only where permission is granted. The change will enable payment in meritorious cases that settle prior to permission being granted.
Changes will be made later this year through secondary legislation or amendments to court rules.
Law Society chief executive Desmond Hudson said that while some of the reforms are welcome, ‘we think that it is wrong for larger public authorities to frighten off people who have legitimate concerns with threats of high costs and the absence of legal aid will exacerbate this further’.
He added: ‘We are disappointed that the government has decided to proceed with the proposal for “at risk” funding for judicial review permission applications. Whilst we acknowledge that there have been some minor changes to the proposed criteria under which the LAA may exercise its discretion to fund cases that conclude before the permissions stage, we think it will be problematic to apply these criteria fairly and consistently. Our main concern remains that the changes will make it more difficult for ordinary citizens to challenge the unreasonable decisions of public bodies.’
Labour’s shadow justice secretary, Sadiq Khan, said the proposals will ‘do nothing to improve justice’.
However, he would not be drawn on which measures he would overturn. ‘The next Labour government will look to increase the power of the citizen not decrease it like this coalition government is doing,’ Khan said.