Submission to Bingham Centre Review Into Streamlining Judicial Review in a Manner Consistent With the Rule of Law

Our Mission: Promoting human rights and holding governments to account, drawing upon the lessons learned from the conflict in Northern Ireland.

Our Expertise and Achievements: Since 1990 we have provided support and services to anyone whose human rights were violated as a result of conflict. Our interventions have reflected our range of expertise, from the right to a fair trial to the government’s positive obligation to protect life. We have a long record of working closely with NGOs and government authorities to share that expertise. We have received wide recognition, as the first winner of the Parliamentary Assembly of the Council of Europe’s Human Rights Prize in 2009 alongside other honours.

Our Judicial Review Experience: We have substantial experience as a third party intervener in a number of judicial review applications before the courts of England and Wales and in Northern Ireland. We have intervened as both a sole third party intervener and as a co-intervener with other NGOs in third party applications. Our interventions have included challenging the length of pre-charge detention in terrorist cases, challenging the certification of trial without jury in Northern Ireland and the expectation to speak Irish in the courts in Northern Ireland. We have also intervened in applications before the European Court of Human Rights (ECtHR). Our most recent co-intervention before the ECtHR was in Al-Saadoon and Mufdhi v UK [61498/08] following litigation before the domestic courts on the issues of the jurisdiction of the European Convention of Human Rights and the Human Rights Act 1998.

The Bingham Centre Review Into Streamlining Judicial Review

We welcome the initiative of the Bingham Centre in launching this Review. This is particularly so in the context of the government proposals in relation to both judicial review and legal aid. Rights Watch (UK) has made submissions to both of the government’s consultations on judical review. In addition RW (UK) will be making submissions in response to the call for evidence made by the Joint Committee on Human Rights on the theme of the implications for access to justice of the government’s proposed judicial review reforms.[1]

We endorse the statement of the Chair of the Review Michael Fordham QC:

“In this Review, the Centre aims to examine in a constructive and practical way whether the procedures of the Administrative Court, including judicial review, could be adjusted in ways which could achieve savings and efficiencies while meeting rule of law standards and safeguarding access to justice.”

We stress the importance of making it clear to the government that as an NGO we understand both the importance of having an efficient Administrative Court, which reflects the demands of modern society in terms of its functionality, and the importance of judicial review in maintaining the rule of law within the constitutional matrix of the separation of powers. We consider that these two aspects are neither mutually exclusive nor necessarily in conflict but can be configured compatibly without compromising either the efficiency demand or the integrity of the rule of law. This form of approach by an NGO is intended to overcome the innate tendency to be defensive in what might be interpreted as attacks by the government on access to justice and the rule of law and the impression assumed by government that an NGO is necessarily ignorant or hostile to the demands for efficiency in the functionality of judicial processes in public life.

We make these submissions to the Review as a human rights NGO which has a strategic litigation policy as part of its operational remit. It is on this basis that we are able to contribute to the current debate on reforms to Administrative Court of England and Wales. We understand the constraints of our remit, the role of strategic litigation by NGOs, the legality of our of charitable status and the relationship with our funders. We are neither a campaign organisation nor an organisation with a membership. These factors, and others, impact how we conduct strategic litigation in the UK domestic courts and the European Court of Human Rights. Specifically we draw on our experience of being a third party intervener before the Queen’s Bench Division and the Court of Appeal of the Northern Ireland High Court and before the UK Supreme Court.

We make our comments by answering two questions which we consider reflect the thrust of the government’s proposals in relation to judicial review, which seek to restrict strategic litigation by an NGO without rehearsing the points we have made directly to government in response to its most recent consultation. We assume the perspective of a third party intervener as opposed to an organisation as a claimant. However, we propose that many of our points will apply whether the NGO is a third party or a claimant in proceedings before the Administrative Court. As a claimant an NGO assumes a direct cost risk and the litigation burden. However, an NGO maybe the only available body to have locus in a public law proceeding, or the only available body able to represent the public interest in such proceedings in the absence of a group or individual with a direct interest (for example the work of Corner House). There may also be cases where a claimant application has been settled without conceding the substantive issues thus leaving important policy process issues unchallenged. In terms of an NGO strategic litigation policy whether to apply as a claimant or as a third party intervener involves a range of risk factors to be considered by the organisation, its governance structure, funders, sponsors (and where applicable its membership) and stakeholder partners.

What value can an intervention offer in a Judicial Review application?

We start from the premise that a third party intervention can and should add value to a judicial review application engaging an aspect of the public interest and public policy in the process of a decision taken by the executive. This question of the value of a third party intervention has been accepted by senior members of the judiciary, most recently by Baroness Hale, Deputy President of the UK Supreme Court, in her address to the Public Law Project “A Year in Judicial Review Conference” 2013:

“The approach we adopt towards the standing required for people and organizations to bring claims for judicial review or other public law remedies is crucial to the constitutional purpose which they serve. The same is true of the approach we adopt to governmental and non-governmental bodies who want to intervene in the proceedings to draw to our attention arguments or material which for whatever reason the parties may not have put before us. … [T]oo close a concentration on the particular interest which the claimant may be pursuing risks losing sight of what this is all about … [F]undamentally the issue is not about individual rights but about public wrongs. There are better ways of nipping unmeritorious claims in the bud than too restrictive an approach to standing.”[2]

The value in a third-party intervention in a judicial review application in the Administrative Court is that the intervention is intended to both assist the court and to add value to an application. The intervention assists the court if it brings to the attention of the judge or the panel of judges, constituting the tribunal, a perspective that might not otherwise be expressed. This perspective might be because of the particular expertise of the NGO in the domestic field or from an international perspective where an NGO operates. It could also be an academic lead perspective mirroring a judicial opinion. It can be an expression of argument that might not be otherwise available to the claimant party to the facts.

Therefore, as endorsed by the judiciary, the intervention can assist the court in its decision-making process. A forthright approach can be taken which, again, might not be available to the claimant but serves to inform the court in its decision making. We suggest for example the role of the NGO third party intervener in presenting evidence to the court relating to the public interest issue in contest, or to assist by presenting policy development or legislative background information, or, as already suggested, a comparative law approach to the issue. If the point is made concisely then all the better. If the court considers itself assisted by the intervention because of the range of reasons presented above then it has served to add value to the application and has assisted the process of judicial decision making. The intervention is also contributing to the importance of open justice, however that is a perspective beyond the remit of this submission although it is reflected in the recent comments by senior members of judiciary including Lord Neuberger, President of the UK Supreme Court, around the debate on judicial review reform.[3]

How does an intervention proceed to assist the Administrative Court?

In addition to the reasons suggested above, an intervention assists the court if the intervener follows both the express and implied procedural rules and conventions which already exist.

These are in part stated in the both the Rules of Supreme Court and in its Practice Direction 8 at section 8. We suggest that both the Rules and the Practice Directions are adopted by both the Administrative Court and the Court of Appeal. Therefore, there is already a structure in place to guide third party interveners and it is a structure which draws the attention of the intervener to the need for value and assistance in the intervention (Practice Direction 8 at section 8.8.2). There is little evidence to suggest that experienced third party interveners have ignored these existing strictures in addition to the fact that the third party intervener applies to leave to intervene and therefore there is already judicial gatekeeping of applications to make third party interventions through the exercise of judicial discretion. The courts have not expressed a view that this aspect of decision making is unduly burdensome or inefficient if the resulting intervention assists in enhancing the judicial decision making process.

In addition Practice Direction 6 at section 6.9.4 stipulates that the intervention must avoid repetition and be restricted to 20 A4 pages. Further, there is no evidence that a particular state agency of the executive has lodged an opposition to such an intervention in a judicial review application. However, it would be helpful if the government agencies considered not contesting all the permission hearings in judicial review applications; this would save costs and also save judicial time. It would be to re-orientate elements of the present debate back onto the government to consider how it could avoid judicial review challenges through the examination of policy making and implementation at an earlier stage to a legal challenge or by way of settlement.

In addition there are tacit understandings made by experienced interveners who conduct strategic litigation. These understandings inform the decision of the NGO to consider whether to make an intervention or not and are therefore self-imposed restrictions. These understandings or rationales may need to be ventilated more widely to inform those potential interveners who may be naïve to the process. It should also be noted that not all NGOs necessarily conduct strategic litigation and we distinguish between campaigning and strategic litigation. However, as policy decision-making determines or responds to developments within society new public interest issues will emerge and new challenges will become apparent.

• The tacit understandings and rationales made by interveners will include the following:
• What value can this intervention add to this judicial review application? This question implies some understanding or intuition of what arguments, evidence or perspective will or can be being made by the claimant. This understanding requires communication with the claimant, although not necessarily their endorsement or consent to the third party intervention, whilst maintaining sufficient distance from the claimant so that it does not appear that there is collusion in the application in that the third party intervener is merely adding credibility to the claimant’s application.[4]
• Can the intervention be made solely through written submissions or is an oral hearing required? This question also engages the availability of counsel to assist in the oral hearing, the cost of counsel or whether counsel can act pro bono.[5]
• What is the risk of costs in making the application? The UK Supreme Court levies a court fee on making a third party intervention. The risk of adverse costs being awarded against an intervener is low given the relevant provisions of the UK Supreme Court Rules and Practice Directions and the increasing use of a cost neutral order being requested at the permission stage of judicial review application in the Administrative Court.
• Can the intervention of the NGO be made with partner stakeholders? A joint approach can strengthen the application and demonstrate the importance of the issues in contention; it can also be used to divide resources between organisations. Further, it might attract the attention of a statutory agency to intervene in its own right (for example to the EHRC).

Conclusion: To Assist the Administrative Court

This submission to the Review has concentrated on the specific area of third party applications in public interest judicial review applications before the Administrative Court. We offer the following concluding comments by way of summary:

• Third party interventions made by an NGO in public interest judicial review applications in the Administrative Court must add value to the application and assist the court
• The rules and conventions applying to third party interventions in the UK Supreme Court should be applied to the Administrative Court and the Court of Appeal
• These rules and conventions provide sufficient guidance to ensure judicial discretion in granting permission to intervene and to regulate the initial arguments
• The government should be encouraged to reflect on its own decision to contest permission hearings in judicial review applications and consider alternatives mechanisms to enter into dialogue when policy is challenged
• It is important that those intent on reforming the Administrative Court appreciate the minimal costs (financial and time) involved in allowing a third party intervention and the considerable value a third party intervention can add to judicial decision taking
• The factors which inform NGO strategic litigation policy decision making, specifically in relation to judicial review interventions, should be more widely promulgated and understood. We hope that the work of JUSTICE in its “To Assist the Court” guide can be used a template.