Lawyers, MPs and legal experts have reacted with alarm to the government’s revised plans to change the rules on granting permission for judicial review.
Justice secretary Chris Grayling last week secured the backing of MPs for concessions made in the Criminal Justice and Courts Bill. The bill now reverts to the House of Lords where it is likely to be nodded through.
MPs’ support relied on a new amendment to retain judicial discretion on the granting of permission for judicial review in cases where there is an ‘exceptional public interest’, even if the outcome would have been the same whether or not a public body had acted lawfully.
But lawyer groups have questioned how the legislation can work and warned that it will lead to satellite litigation as the courts work out how to apply the change.
‘This creates an absurd set of obstacles to solve a problem that did not need fixing,’ said bar chair Alistair MacDonald QC. ‘The higher thresholds and need to demonstrate an “exceptional public interest” will make the pre-permission stage even more protracted.’
A Law Society spokesman said the extra work involved at pre-permission stage could lead to fewer poorer applicants having their case heard.
Grayling told the House of Commons that the new wording was a ‘sensible balance’ that retains judicial review in matters where there has been a ‘major, fundamental and worrying’ breach of procedure.
‘The whole purpose of the reforms is to protect public bodies against cases brought on a technicality,’ he added.
However, senior Conservative MPs questioned the validity of the ‘exceptional public interest’ clause. Former solicitor general Edward Garnier QC (pictured) described the wording as ‘moderately nonsensical’.
Geoffrey Cox QC suggested it was ‘nonsense’ to present a court with an expression he had never come across before.
David Davis, a former shadow home secretary, said all procedural errors must be regarded as exceptional to make agencies and governments obey the law.
Grayling also told MPs that he held ‘severe doubts’ about whether secondary legislation should be subject to judicial review, prompting strong reactions from legal experts.
Dr Mark Elliott, reader in public law at Cambridge University, said exempting legislation that has not been scrutinised by parliament was an ‘assault upon bedrock constitutional principles’.