Parliament's Human Rights Joint Committee publishes report on Government's proposed judicial review reforms

Parliament's Human Rights Joint Committee has today made public its report on the Government's proposed judicial review reforms.

You can read the report here in HTML and here in PDF.

In the report, the Committee raises serious concerns over the conflict on interest in the combined roles of the Lord Chancellor and Secretary of State for Justice, and finds that a number of the Government's proposals risk undermining effective access to justice.

Writing in a letter in the Daily Telegraph, the Human Rights Joint Committee member Baroness Kennedy called the Government's judicial review reform "unjustified". She says the Committee rejected "as being without foundation, the premise that judicial review is abused by pressure groups, and we express concern about the role of the Lord Chancellor. Judicial review sees people seek redress for unlawful Government action. Proposals which may limit access should be treated with caution."

In the summary of the report, the Committee says 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 which raises issues which should be considered by a number of parliamentary committees."

The Committee says it thinks 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 consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.

The Committee questioned the Government's claim that there has been a substantial increase in judicial reviews, saying the Government failed to show clear evidence that non-immigration related judicial review has "expanded massively" as claimed.

The report states that the increase in judicial review was "largely because of the predictable and foreseen increase in the number of immigration cases being pursued by way of judicial review. Such cases have been transferred from the High Court to the Upper Tribunal since November 2013 and no assessment has been made since of whether the number of judicial review cases is still increasing."

The Human Rights Committee says the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted "constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking."

The Committee recommends that the Government withdraw the regulations it has laid to give effect to its proposal, and introduce instead an amendment to the Criminal Justice and Courts Bill to provide Parliament a proper opportunity to consider and debate in detail this controversial measure with such serious implications for effective access to the courts to hold the Government to account.

The Committee also says that it is concerned that the Government 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 recommend that the relevant sub-clauses be removed in order to restore the judicial discretion which currently exists.

The proposal to restrict the availability of costs capping orders to cases in which permission to proceed has already been granted by the court is said by the Committee to be "too great a restriction and will undermine effective access to justice."

The report adds: "For the Lord Chancellor to have the power to change the matters to which the court must have regard when deciding whether proceedings are public interest proceedings has serious implications for the separation of powers between the Executive and the judiciary and we recommend that the Bill should be amended to remove that power from the Lord Chancellor."

The Law Gazette quoted Frances Crook, chief executive of the Howard League for Penal Reform, as saying the report was "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."

A Ministry of Justice spokesman was quoted by the Law Gazette as saying the ministry is considering the report and will respond in 'due course'.

"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," the spokesman said.