The government’s controversial plans to reform judicial review suffered a serious blow last night when the peers voted against key elements of the proposals. Today the Law Society welcomed the defeats and called on ministers to drop the reforms.
Peers voted by 219 to 186 in favour of an amendment to the Criminal Justice and Courts Bill reversing government plans to create a presumption that those who apply to the court to intervene in a judicial review case will have to pay their own costs.
They also voted heavily in favour of an amendment striking down the proposal that applications for judicial review can be denied if the defendant - usually a public body - can show that it is ‘highly likely’ that the action it took made no difference to the claimant’s situation, even if unlawful.
And they also voted down a proposal that applicants should be forced to give detailed information about their financial resources, which critics said would act as a deterrent in complex cases.
All three amendments were proposed by crossbench peer Lord Pannick.
The bill will return to the Commons for further debate.
Peers debated part four of the bill for over five hours on Monday, with politicians of all sides taking turns largely to criticise the government’s plans and warn of their consequences. Of particular concern are plans to give the lord chancellor power to redefine ‘public interest’ proceedings and to order an intervener to pay costs incurred by other parties except in ‘exceptional circumstances’.
Pannick said part four represented a ‘blunt instrument imposing a duty on the judges to dismiss cases which raise issues of public and legal importance’.
Conservative peer Lord Deben, the former environment secretary John Gummer, said judicial review represented the ‘British defence of freedom’.
He added: ‘Every now and again it is annoying to ministers but that is what it’s there for. It made me a better minister because it made me think of the law, not my opinion.’
Support for the government’s position came from a handful of peers, including Lord Tebbit, who argued in favour of parliament upholding laws rather than the ‘unelected dictatorship’ of judges.
Justice minister Lord Faulks said he understood critics’ nervousness but said the debate had been ‘long on hyperbole’.
‘We’re striking a balance between limiting potential for abuse of judicial review and protecting its role as check on public bodies,’ he said. ‘This is a sensible adjustment to existing law – not an attack on the rule of law.’
Speaking after the vote, shadow justice secretary Sadiq Khan said: ‘Judicial review is a crucial tool for the British people to hold to account the actions of those in positions of power and responsibility.
‘If these plans had gone through, it would have been a recipe for bad decision-making, allowing governments and ministers to get away with pushing through actions that were potentially unlawful.’
Law Society president Andrew Caplen commented: ‘We are pleased with this result. It is clear that many peers share our view that a mechanism to hold the executive to account in the exercise of wide powers should not be lost. If the government acts unlawfully it must be brought to account in the courts.
‘The government’s proposals would have restricted access to judicial review for some of the weakest and most vulnerable in society and made it easier for public bodies to act without regard to the law in some of the most sensitive areas of our lives. The government should drop its proposals.’
The government did successfully defeat a proposed amendment to stop a clause that provides that a cost-capping order should be made only if leave is given to apply for judicial review.
Pannick argued that if an applicant could not seek and obtain a costs-capping order until leave was granted, they would inevitably be deterred from bringing proceedings in the first place. The amendment lost by 149 votes to 58.
Following the debate, a Ministry of Justice spokesperson said it was ‘disappointed’ with the outcome and will consider how to respond when the bill returns to the House of Commons.
’These reforms are designed to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and not abused by people to cause delays or to generate publicity for themselves or their organisations at the expense of ordinary taxpayers.’