The government’s judicial review reforms are unjustified and undermine the rule of law, according to an influential cross-party committee of MPs and peers.
In a report published today, the Joint Committee on Human Rights says the government’s proposals to reform judicial review and limit legal aid for public law challenges are incompatible with access to justice and endanger the rule of law.
Emphasises the constitutional function of judicial review, the report says that restrictions on access to justice must be ‘proportionate, reasonable and based upon clear evidence’ as to their necessity. The evidential basis for the government’s proposals is ‘weak’, the committee says.
It rejects the lord chancellor’s attempts to cast judicial review as an abused political tool, stating that, aside from in immigration, the number of cases has remained broadly static.
The growth of case numbers cited by the government as a reason for changes was ‘substantially founded’ upon an increase in immigration cases. ‘These are now dealt with outside that system – and so the principal cause of the rise in judicial review cases no longer exists,’ states the committee.
The proposals ‘expose the conflict inherent in the combined roles of the lord chancellor and secretary of state for justice’, the committee says, calling for a review of the minister’s dual roles.
The proposal to make legal aid for pre-permission work in judicial review cases conditional on permission being granted, says the report, is not justified by evidence and constitutes a ‘potentially serious interference with access to justice’.
It regrets the government’s move to bring in the change through a negative resolution statutory instrument and recommends the regulations are withdrawn or amended.
Lowering the threshold for courts to refuse permission or a remedy in cases where a procedural defect in the decision-making process would have made no substantive difference to the outcome, says the committee, gives rise to the risk of unlawful administrative action going unremedied and risks incompatibility with the right of practical and effective access to court.
It recommends that clause 52 of the Criminal Justice and Courts Bill, which contains the proposal, be deleted or amended so as to reflect the current approach of the courts.
The committee expresses concern that the bill will introduce a deterrent to interventions in judicial review cases. It also suggests that restricting the availability of costs capping orders to cases in which permission to proceed has already been granted by the court is too great a restriction and will undermine effective access to justice.
Committee chair Hywel Francis MP (pictured) said: ‘The government could go some way towards achieving its aims of reducing cost and delay by reforms which would not risk compromising effective access to justice – unlike those it has itself proposed.
Francis said: ‘We also believe that the government’s proposals in this area show how the combined roles of the lord chancellor and secretary of state for justice are in conflict.'
An MoJ spokesman said the ministry is considering the report and will respond in ‘due course'.
He said: ‘We want 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 is not abused by people to cause delays or to generate publicity for themselves or their organisations at the expense of ordinary taxpayers.
‘Our reforms will bring balance to the judicial review system.’
Frances Crook, chief executive of the Howard League for Penal Reform, said: ‘This is a devastating critique of the failure to grasp the complexity of the conflict of interest inherent in the dual role of politician and legal champion.'
Director for campaign group Justice, Andrea Coomber, said: ‘Judicial review is one of the very few means by which we can challenge public bodies and government departments which act unlawfully. We should all be watchdogs when the government tries to rewrite the rules in its favour.’
She said: ‘Pressing ahead with these changes will shield government – big and small – from scrutiny, will deprive individuals without means of an often much-needed remedy and will undermine the rule of law.'
Shadow justice minister Andy Slaughter said the report exposed the government’s ‘ill-considered attacks’ on judicial review and ‘partisan proposals’ that will particularly hit children, disabled people and marginalised groups.
‘Taken in tandem with the cuts in legal aid for judicial review this amounts to an attack on the rule of law,’ he said.
'While judicial review is an inconvenience to ministers, this is precisely why it is so important. And we know from recent history that judicial review is a key tool in exposing government failures.'