Lib Dem Lawyers on Judicial Review

House of Commons at NightThe Criminal Justice and Courts Bill is returning to the Commons today after being ‘batted’ back in ping-pong proceedings between Lords and Commons.

Lib Dem peers working with the crossbenchers are refusing to approve two measures:

1) The Government’s Secure College plans for under 15s.
The Lib Dem Lawyers Association are not the experts in this field, but are concerned that MPs should consider all the risks and issues raised by leading experts. The Lords amendment would exclude under 15s from the Secure College until such time as Parliament agrees that it is safe to send them there.

2)  The Government’s reforms to Judicial Review
The Lib Dem Lawyers Association has a basic concern as whether it is appropriate for Parliament to interfere in the workings of the Judicial Review system, as MPs risk enacting measures that makes it harder for the Government  to be called to account for unlawful actions or procedural wrongs in the Courts. The Government’s argument suggests there are too many frivolous or vexatious Judicial Reviews, with public law applications being used as delaying tactics or campaign publicity devices. However, very little evidence has been produced beyond anecdotes to suggest that there is a serious problem and, of course, Ministers are always ‘irked’ by the tiresome process by being called to account.

The reforms are to Judicial Review are threefold:

(i) introducing a new test at the ‘permission stage’ that if it appears “highly likely” to a judge that on the facts of a case the outcome would not have been substantially different, then Judges must refuse to progress the case;

(ii) introducing a reporting requirements and regulations around how Judicial Reviews are being funded, especially if there are “third parties” involved (which may just involve just family members contributing  to a fighting fund), with risks of further costs, and penalties if they don’t get this right;

(iii) new rules for “interveners” – charities, NGOs etc that decide to submit critical expert evidence briefs (often decisive in case outcomes) to the Court, are to be exposed to paying the costs of other Parties to the case; a huge and unquantifiable
risk for those interveners.

As Chair of LibDem Lawyers,  I have written to all LibDem MP’s  confirming our support for the peers.   Maintaining government accountability under administrative law is an important liberal principle in a democracy, and that it follows that how public law cases are progressed through the legal system should primarily be a matter of judicial management and discretion under civil procedure rules (which are determined by an independent Rules Committee rather than Parliament.)

Parliament should be particularly wary of imposing a “highly likely” test if it either confuses the role of Judges, or reduces the risks of public authorities being subject to judicial review applications. These are often the only action that makes many local councils even attempt to ensure that their decisions are justifiable, and binds Government Departments to consulting thoroughly in the way they make policy and undertake appropriate impact assessments. The fact that a judicial review might not change a policy decision is no reason to stop judicial reviews as they equally valuable in ensuring that public bodies go through their due process.

Liberal Democrats have always been the Party that understands the importance of constitutional checks, due process in public administration and the Rule of Law, so should be in the forefront of making arguments against fettering judicial discretion.

 

* Graham Colley is President of the Lib Dem Lawyers Association. He is the great-nephew of Gareth Jones. He was on the London List in the 2019 European Elections and was candidate for Rochester in Medway in December 2019. He is currently President of Rights Liberties Justice (Liberal Democrat Lawyers Association). He has been helping to promote the film "Mr Jones" on a voluntary basis.

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13 Comments

  • Background Lawyer 15th Dec '14 - 1:01pm

    Whilst I am no fan of the amendments to judicial review, I find the article above worryingly threadbare in a number of respects:
    1. “as whether it is appropriate for Parliament to interfere in the workings of the Judicial Review system” – why on earth shouldn’t it be. The UK system is based on the idea that parliament is supreme . . .
    2. “with public law applications being used as delaying tactics or campaign publicity devices” – one of the reasons I’m posting this anonymously is because I am a public law practitioner. We all know that campaigns use litigation as part of their strategy.
    3. “[Judicial reviews] are often the only action that makes many local councils even attempt to ensure that their decisions are justifiable” – doesn’t say a lot for local democracy then? What the author is doing here is conflating the substantive merits of the decision with the legality of it. Just because you don’t like a decision it doesn’t mean it’s unlawful.

  • paul barker 15th Dec '14 - 1:54pm

    This is surely the time for The Party Leadership to back dow, pretty clearly they have called this one wrong.

  • Paul Barker and I are often rare voices supporting the leadership on LDV, but I think he is absolsutely right on this one.

    An excellent and very welcome article, Graham. Many Thanks.

  • David Evans 15th Dec '14 - 4:02pm

    It’s good to welcome paul barker to the light side. Sadly Nick has so entrenched his position as people have prevaricated that he believes he is almost impregnable. He may back down, but only if he feels he needs it to get through the next six months.

  • The Government’s argument suggests there are too many frivolous or vexatious Judicial Reviews, with public law applications being used as delaying tactics or campaign publicity devices. However, very little evidence has been produced beyond anecdotes to suggest that there is a serious problem

    Um, I can guess that you don’t have any experience of local government, where every infrastructure project anywhere is now JR’ed to high-heaven by every interest group in town.

    Of course, you’re all lawyers, so you do actually have a vested interest in there continuing to be as many complex and expensive legal cases as possible, don’t you?

  • David Howarth 15th Dec '14 - 9:26pm

    @Mboy
    Well, I have a lot of local government experience. I was a councillor for 17 years and leader of a council for three . Of course it’s annoying to be JR’ed, but if you’ve done things properly there is nothing much to worry about it. And if you lose it’s because you, or the officers, have done something wrong or stupid (or both). In major infrastructure projects, there are always delays but in the run of things that can go wrong JR is a relatively minor problem. And in any case, what price would you put on the rule of law?

  • MBoy. In which case it is rather surprising that the Minister in the Lords when asked whether he had any statistics on the level of “abusive” JR applications said “I have not statistics on that I’m afraid”

  • @David – apart from the millions of pounds of taxpayer’s money it funnels into the pockets of lawyers like Graham Volley at a time when services are being cut it’s no problem at all.

    @Hywel – it’s not my fault the Minister is inept.

  • James Sandbach 15th Dec '14 - 11:32pm

    @Mboy – perhaps you might check your facts, Graham (Colley not Volley – for I assume it’s the author you’re referring to) runs a tiny legal practice from his Kitchen which doesn’t do any Judicial Review work (and Graham’s also been a Councillor). But don’t let that stop you being unpleasant and derogatory to people on account of their profession, as well as quite unbelievably misinformed on JR.

  • As James has said, Graham works in an area of the Law which has nothing to do with Judicial Review – and therefore to claim he is doing so out of financial interest is disingenuous to say the least.

    I have comments on all of these proposals by the Government, but will save them for another day. I just wished to echo that Graham should be dismissed on account of his profession.

  • This doesn’t seem to have come to a vote today. At least if it did it was very badly reported!

  • David Howarth 16th Dec '14 - 1:25am

    On legal costs, the government won’t say what savings it thinks its proposal will make but one can make an estimate from its Impact Assessment. It says that 10% of non-immigration and criminal JRs are purely procedural and it claims that that 50% of JRs are not meritorious. It also says that legal costs for councils range from £8k to £25k per JR. Assuming that all of those JRs concern councils (a high estimate) and the ‘highly likely’ test applies to half of the unmeritorious claims (also a high estimate), it turns out that the expected savings per council per year are something like £2500. The government isn’t doing this because it thinks it will help councils stave off the cuts.

  • suzanne fletcher 16th Dec '14 - 2:29pm

    I am no expert on this, but what Graham, James and some others say resonates with me.
    What i am not sure of is whether JR is the most appropriate way of dealing with conflict, and whether the new Bill addresses this ?
    for instance I was with some asylum seekers this morning who had been in Yarlswood Detention Centre (their crime being they were sent here by the Belgium Government, long story). they said the only way to be released into the community was via a JR which is a very expensive process with barristers.
    Obviously we need to end detention like this (indefinite detention abolition is now LD Policy), and very wrong in my view that people are sent to such by Home Office officials with no legal process, but there must be a more efficient way of justice being served than JR ?

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