Proposed changes to judicial review carry the risk of undermining the rule of law, a high-profile committee of peers has warned.

A report published today by the House of Lords constitution committee on the Criminal Justice and Courts Bill, currently before parliament, warns that the changes may undermine access to justice and weaken the ability of citizens to challenge decisions of government or state agencies.

In particular, it raises concerns over the tightening of the criteria for granting judicial reviews, changes to the rules on the legal costs of interveners in judicial reviews, and proposals to make it easier for cases to ‘leapfrog’ the Court of Appeal.

The report stresses that judicial review is central to the rule of law, as it provides the primary means through which parties may challenge the lawfulness of decisions made by the government and other public bodies. 

It questions the government’s position that judicial review ‘has expanded massively’, pointing out that once immigration cases are removed the number of applications for judicial review shows only a modest rise.

The report notes that immigration cases have been removed from the jurisdiction of the High Court and are now dealt with by the Upper Tribunal. 

The bill proposes that courts must refuse an application for judicial review if it appears highly likely that the ‘outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’.

The committee says this could lead to ‘unlawful administrative action going unremedied’. Currently the law states that courts should refuse an application only if it is inevitable that the conduct complained of would have made no difference to the result. 

The report also says the changes covering costs that may be imposed on third-party interveners in judicial reviews may ‘impose too great a limit on effective access to justice’.
The committee also asks the government to look at clause 46, which would make it easier for appeals from the High Court to ‘leapfrog’ the Court of Appeal and proceed directly to the Supreme Court.

Rather than requiring the agreement of all sides, the report suggests, a case could be leapfrogged if the judge agrees to an application from one party, so long as certain tests are satisfied. 

Committee chair Lord Lang of Monkton (pictured) said: ‘Judicial review is an important means for citizens to challenge the legality of decisions by the state, so access to the process should not be unduly restrained.’

He said the committee has ‘invited’ the House of Lords to consider the bill in the context of the ‘need to uphold the rule of law’.

The bill will begin committee stage in the Lords on 14 July.