Proposed changes to judicial review contained in the Criminal Justice and Courts Bill risk unlawful administrative action going unremedied, the House of Lords Constitution Committee has warned.
In a report on the Bill, which is to begin committee stage in the Lords next week (14 July), the committee highlighted in particular the potential impact of clause 64.
This part of the draft legislation sets out that courts should refuse an application for judicial review if it appeared likely that the “outcome for the application would not have been substantially different if the conduct complained of had not occurred”.
The report said this was a change from the current criterion that courts should only refuse an application if it is inevitable that the conduct complained of would have made no difference to the result.
The committee invited the House of Lords to consider whether the clause, by lowering the threshold, risked “undermining the rule of law”.
The report also:
Questioned the Government’s position that judicial review had “expanded massively”. It said that – once immigration cases were removed – the number of applications for judicial review had increased modestly;
Claimed that the Bill risked turning the permission stage of the judicial review process into a “full dress rehearsal” of the substantive stage. This could increase costs rather than lower them;
Warned that proposals covering the legal costs that may be imposed on third-party interveners in judicial reviews might “impose too great a limit on effective access to justice”;
Said consideration should be given to amending the Bill so that the views of the parties are to be taken into account when it is decided whether a case should ‘leapfrog’ the Court of Appeal and go direct to the Supreme Court.
Lord Lang of Monkton, chairman of the committee, said: “The Criminal Justice and Courts Bill will clearly have a significant impact on judicial review. 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. We have therefore invited the House to consider the bill in the context of the need to uphold the rule of law.”