Earlier this week, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). The report is, perhaps unsurprisingly, generally critical of the proposals and of the way in which they have been or are being introduced. I have already summarised the proposals and commented on some of them in earlier posts. In this post, I draw attention to some key passages in the JCHR’s report, commenting on them briefly and, at the end of the piece, offering some reflections on some of the underlying constitutional issues highlighted by the Committee.
The rule of law and the role of the Lord Chancellor
The JCHR is highly critical of the “politically partisan” way in which Chris Grayling, the Lord Chancellor and Justice Secretary, has sought to justify the proposed changes to judicial review:
In an article in The Daily Mail on 6 September 2013, the day on which the Government’s judicial review consultation was launched, the Lord Chancellor suggested that the rationale for the Government’s proposed reforms is that judicial review is being used as “a promotional tool by countless Left wing campaigners.” Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.
The Committee concludes that as well as casting doubt upon the legitimacy of the reasons for the present reforms, the role played by the Lord Chancellor and Justice Secretary raises deeper constitutional questions about that combined role:
In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice. This raises issues which should be considered by a number of parliamentary committees, including the Commons Justice Committee and the Lords Constitution Committee. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office.
The Committee raises an important point here; I offer some brief reflections on it, and on related matters, in the final section of this post.
In making its case for reform, the Government has made much of the supposed increase in recourse to judicial review in recent years and decades. As my co-authors and I pointed out in the Bingham Centre’s response to the first set of proposals for reforming judicial review, the evidence base upon which the Government’s claims are made is very weak. In evidence given to the Committee, Professor Maurice Sunkin said:
if one leaves aside the immigration case load, the evidence does not show that there has been a substantial increase in the use of judicial review. In fact, the official statistics […] reveal that, in non-immigration civil judicial reviews over the last 15 years or so, case numbers have remained fairly constant at just over 2,000 a year. […] By any measure, that is not a large number compared with the number of decisions taken by Government annually.
Sunkin makes a compelling point (which, toghether with Varda Bondy, he makes at greater length in a blog post published in January 2013). The Committee concluded that the Government has not
demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.
Procedural defects and substantive outcomes
As presently drafted, cl 52 of the Criminal Justice and Courts Bill will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief in judicial review cases must be refused “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This would represent a substantial departure from current practice, whereby the threshold is set at the higher level of inevitability. I have argued elsewhere that this proposal is highly problematic. The JCHR has reached the same view, citing both constitutional and practical difficulties. As to the former, the Committee says:
We note that Lord Pannick, the Bingham Centre for the Rule of Law and Tom Hickman and Ben Jaffey, are all of the view that the proposed reform in clause 52 of the Criminal Justice and Courts Bill is objectionable for constitutional reasons, because it instructs courts to ignore unlawful conduct by public authorities, even where that unlawfulness is material in the sense that it might have made a difference to the outcome. We agree with this view: it is in the public interest for public bodies to make lawful decisions.
As far as the practical implications are concerned, the Committee endorses the following passage from the Senior Judiciary’s response to the Government’s consultation paper:
In a small number of cases it may be obvious that a procedural flaw can have made no difference to the outcome. In these cases, permission will be refused. However, in most cases, the decision whether a procedural flaw made a difference to the outcome cannot be taken without a full understanding of the facts. At permission stage the requisite full factual matrix is rarely before the court. As foreshadowed in question 13, an obligation to focus further on the no difference principle at the permission stage would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings. It is difficult to see how this outcome could be avoided.
The Committee concludes that cl 52 should be removed from the Bill, and that, if the Government insists on retaining it, that it should be redrafted in order to reflect the current approach based on an inevitability threshold.
I have written elsewhere—in this post, and as co-author of the Bingham Centre’s response to a later Government consultation—about the implications of legal aid changes for judicial review and access to justice. I will not therefore seek to summarise the changes here. Suffice to say that the Committee expresses two major concerns. First, it argues that one of the key proposals is not justified by reference to reliable evidence:
We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it—evidence which is currently lacking.
Second, it raises an important constitutional concern about the way in manner of the enactment of the reforms:
We also regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective access to justice … In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary. The Government could have given both Houses of Parliament the opportunity to do so by including a provision expressly authorising the change in the Criminal Justice and Courts Bill which is currently before Parliament, Part 4 of which contains some other significant proposals for reforming judicial review.
The Committee takes a dim view of the proposal concerning interveners. As presently drafted, the Criminal Justice and Courts Bill would introduce a presumption that interveners must pay their own costs and any costs involved by other parties resulting from their intervention—a presumption that is rebuttable only if there are “exceptional circumstances”. The Committee recommends that the present discretionary approach be preserved:
Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.
The Committee also disagrees with the proposal to limit the availability of protective costs orders. While it welcomes some aspects of the proposals in this area, including the proposal to place PCOs on a statutory footing, the JCHR is concerned that the Government proposes to permit the making of PCOs only if leave to apply for judicial review has been granted. Criticising this aspect of the proposals, the Committee quotes with approval from the following submission it received from the Bingham Centre:
[D]efendants and interested parties not infrequently run up massive pre-permission bills, especially where the Defendant is a regulator or private body acting in a public capacity, or there is a private interested party. Cases may have pre-permission costs that comfortably exceed £30,000. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk. Here, again, the proposals appear to give with one hand (endorsing PCOs) but take back with the other through hidden financial disincentives that will in practice undermine PCOs and negate the attainment of the purpose they are intended to serve.
Finally, the Committee welcomes the Bingham Centre’s very recent report on Streamlining Judicial Review in a Manner Consistent with the Rule of Law, concluding that “the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms which would make the process of judicial review more expeditious and therefore cheaper”.
The JCHR’s thoughtful analysis and sensible—if unsurprising—conclusions are to be welcomed. But perhaps more important, in the long term, than its conclusions in relation to individual aspects of the proposals are its comments, towards the beginning of the report and noted above, concerning the constitutional roles of the Lord Chancellor and Justice Secretary. Albeit relatively short, the history whereby those roles have emerged in their present forms is tortuous and complex. It has its roots in a botched Cabinet reshuffle undertaken by Tony Blair. Premised on the assumption that the centuries-old office of Lord Chancellor could be abolished via a Government press release, the reshuffle resulted in the departure from the New Labour government of Lord Irvine, Blair’s first—and the last old-style—Lord Chancellor. Irvine was succeeded by Lord Faulkner, who became both Lord Chancellor and Secretary of State for Constitutional Affairs.
At that point, the change was largely nominal, but reforms of a more seismic nature took place in 2007. The Department for Constitutional Affairs—which itself had only recently succeeded the Lord Chancellor’s Department—was replaced by the Ministry of Justice. This, however, was no mere rebranding exercise. Instead, it signified the transfer to the new Department of responsibility for swathes of policy that had hitherto fallen within the Home Office’s domain. The Lord Chancellor and Justice Secretary then assumed a more overtly political role, finding himself at the forefront of contentious policy areas including prisons and probation. Over time, therefore, the balance of emphasis within the combined Lord Chancellor/Justice Secretary role has changed, and the aspects of the role that relate to being a “regular” Minister have begun to eclipse those aspects that recall the traditional role of the Lord Chancellor as a guardian of constitutional propriety and judicial independence. It is perhaps no surprise that concerns of the type expressed by the JCHR in its recent report have arisen in a particularly acute form during the tenure of Chris Grayling, a non-lawyer for whom the Justice Secretary aspect of the role is clearly the more compelling one.
I think, however, that the issue goes even deeper than the tensions that are inherent in the Lord Chancellor/Justice Secretary role. Indeed, it is arguable that those tensions are merely superficial manifestations of more profound, and deeply-embedded, features of our constitutional architecture. That government Ministers (other, perhaps, than old-style Lord Chancellors) regard judicial review as an irritant is natural enough. Judicial review plays a key role in upholding the rule of law by ensuring that Government acts lawfully, and it is unsurprising that Ministers do not welcome adverse judicial rulings. In many legal systems, that courts are able to discharge such a role is a constitutional given, the relationship between the judicial and executive branches being a function of the terms of a written constitution over which no single organ of government has unilateral control.
In contrast, the system in the UK—in the absence of hierarchically-superior constitutional text capable of determining the balance of power between different governmental institutions—depends upon the courts and the executive exhibiting mutual respect for one another’s constitutional roles. Both the content of the Government’s recent judicial review proposals and the ways in which it has sought to introduce them evidence an erosion of executive respect for the courts’ constitutional function, and so a reluctance to observe the self-denying ordinance that previous governments—no doubt cheered on by old-style Lord Chancellors—have adhered to in the face of adverse judicial rulings. None of this is to suggest that there exists some sort of golden age in which the executive was entirely passive in the face of judicial admonishment—tensions between the executive and the judiciary are an inevitable and necessary feature of our system. It is, however, arguable that the present Government’s approach to judicial review reform evidences an unusually acute erosion of administrative respect for the courts’ constitutional role. If, therefore, the JCHR’s suggestion is taken up and there is a debate about the constitutional appropriateness of the combined roles of Lord Chancellor and Justice Secretary, it is to be hoped that these deeper, underlying issues about how to secure institutional comity within an unwritten constitutional order will form part of that debate.
Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post originally appeared on Dr. Elliott’s blog Public Law for Everyone.