Proposals for Further Reform (CM 8703)
We respond to those aspects of the consultation where we have expertise and knowledge.
4 Standing
Question 9: Is there, in your view, a problem with cases being brought where the claimant has little or no direct interest in the matter? Do you have any examples?
In our view, there is no problem in principal in a case being brought by a claimant with no direct interest in the matter. The purpose of judicial review by the judiciary is to hold the executive to account in the exercise of its power. It is in the public interest in matters relating to the exercise of executive power that these be brought to the attention of the judiciary for review, and the public has an interest in the operation of this process, as well as in the substantive issues concerned.
We understand that the policy motor driving the proposed reforms to standing is the incorrect assumption put forth in the consultation that “Parliament and the elected Government are best placed to determine what is in the public interest” (paragraphs 79-80). We consider this is fundamentally wrong in the context of judicial review when it is the operation of executive powers that are being scrutinised and challenged. It misunderstands the purpose of judicial review and public scrutiny in general to have those being scrutinised dictate and determine the process of oversight and accountability in the exercise of power.
A similar concern can be seen in the context of the proposals regarding access to legal aid, where the assessment of financial eligibility is in part based on the prospects of success (merits) of the case. In our opinion, the mere process of investigating and reviewing particular executive actions is essential to the process of effective public scrutiny and this is placed in danger if the process is amended due to a flawed assumption motivated by the economic factors of exclusion from challenge to executive decision making in policy. It may be that in other areas the government superior expertise would be a convincing argument, but we do not consider that it is justified in this context of what is fundamentally a constitutional challenge.
A more restrictive test for standing would place both the effectiveness and the potential benefits of judicial review in an even more vulnerable position by limiting those who could challenge to individuals or groups that are in the government’s perspective most concerned. Assuming that judicial review is a constitutional tool for accountability, the whole of society has an interest in ensuring it is used to its full extent and potential and a more restrictive test for standing misunderstands this.
In terms of specific problems that would arise from a more restrictive test for standing, we are concerned about the impact this would have on NGO ability to engage in the judicial review process. An NGO holds an important position that bridges the gap between a particular legislative proposal or change and those directly or potentially affected by it. It is probable that in some situations members of the public would be unaware of particular legislative details that would affect them and an NGO plays an important role in representing and assisting individuals and groups to ensure they are not detrimentally affected by any such proposals.
We stress that this is not a campaigning too but of assistance and representation. Furthermore, it is not clear what issues may arise in the future and a more liberal approach to standing such as exists presently, allows for such flexibility as issues evolve. The presence of an NGO adding value to a judicial review application (see below) or as claimant (such as Corner House Research: R (On The Application of Corner House Research and Others) V Director of The Serious Fraud Office [2008] UKHL 60) asserts the importance of civil society in the litigation system and enables a broader consideration of factors introduced by those with expertise and knowledge to be taken by the judiciary in its consideration of the challenge made in the application.
A more restrictive test for standing not only misunderstands the nature and purpose of judicial review as a constitutional tool, but also may mean in specific cases that there is no individual or group claimant to challenge a decision in the exercise of power or policy. For example, there may be cases where a particular policy has not had a direct effect on an individual yet or the individual themselves is unable to bring a challenge (for example those in immigration detention, those with mental health impairment). Such cases would include R (Medical Justice) v Secretary of State for the Home Department [2011] EWCA Civ 1710, where the charity Medical Justice challenged a policy that allowed people to be deported with less than 72 hours’ notice (without time to get legal advice if detained). No individual was in a position to challenge the policy because they had already been deported without access to such legal advice in the first place. Alternatively, in R v Gloucestershire City Council ex parte Barry [1997] UKHL 58, the Royal Association for Disability and Rehabilitation became the claimants after the litigant died. These types of applications highlight that it is the importance of challenging the policy that must come first and not whether it has had a direct impact on a particular individual as of yet.
Further, at paragraph 76 of the Consultation, the government refers to R v Secretary of State for Foreign and Commonwealth Affairs Ex parte World Development Movement Ltd [1995] 1 WLR 386 as an example of where the claimant was held to have standing despite its members not having a direct interest in the policy. In our view this is a strong example of circumstances that should have been brought to the attention of the court due to the importance of the policy being reviewed. The huge scale of the financial aid project and the concerns for its links to the arms trade and questionable motives is so fundamentally in the public interest that to have excluded the case on the basis of a lack of direct interest would have completely isolated the actions of the government action from review and would have been incongruent with the rule of law and the essential constitutional principal of executive accountability. Regardless of the outcome of the case (whether the government was assessed to be acting ultra vires or not), the public importance in having such a case brought to the attention of the courts was paramount. This was particularly so when the case concerned large scale foreign developments, which for the most part the specifics of which would probably not have been available to the public before the introduction of the Freedom of Information Act 2000.
Question 10: If the Government were to legislate to amend the test for standing, would any of the existing alternatives provide a reasonable basis? Should the Government consider other options?
In our view, the government has failed to explain why the current test for standing is unsatisfactory. There is no evidence to suggest that the courts misapply the current test in a way that leads to problems asserted by the government such as “to seek publicity” or “hinder the process of proper decision-making” (paragraphs 79-80) (however ‘proper’ decision-making is defined). Therefore, we do not consider that any of the proposed alternatives would be more reasonable. The current test for standing allows for flexibility that depends on context and issue whilst at the same time recognising the importance of judicial review in assessing the exercise of executive powers.
This view was expressed recently by Lord Reed in Axa General Insurance Ltd v HM Advocate [2011] UKSC 46, where he stated:
“In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law” (paragraph 170)
This view demonstrates the significance of context and the role of the courts in the proper operation of the judicial review process. Retaining the existing test for standing is consistent with the received interpretation of the constitutional role of judicial review whilst allowing the courts interpretative and practical flexibility to consider whether the claimant’s application before them should be allowed to bring the particular case.
Question 11: Are there any other issues, such as the rules on interveners, we should consider in seeking to address the problem of judicial review being used as a campaigning tool?
We are concerned that the government has produced no substantive evidence for its assertion that judicial review is used as a campaigning tool by some NGOs. Alternatively, even if the government has examples that it has not revealed, it is not clear why a more restrictive test on standing would combat this as those who would find the case useful as a campaigning tool would also be those who presumably would satisfy the direct interest test. Furthermore, the paramount consideration for judicial review should be holding the executive to account. As long as this remains the primary purpose of the application, which will depend on the context, campaigning success or publicity would only be a consequential effect and is not a sufficient reason to restrict standing in a way that places the primary purpose of judicial review in jeopardy.
7 Rebalancing Financial Incentives
Paying for permission work in judicial review cases
Question 19: Do you agree that providers should only be paid for work carried out on an application for judicial review in cases either where permission is granted, or where the LAA exercises its discretion to pay the provider in a case where proceedings are issued but the case concludes prior to a permission decision? Please give reasons.
We do not agree with the above proposal. It would discourage public lawyers from undertaking applications for judicial review as the financial risk if the case does not proceed beyond the permission stage will lie with them and permission stage is inevitably challenged by the government through the Treasury Solicitors. Public lawyers cannot be expected to bear this financial burden as it would mean that the focus of the application would be the financial risk as opposed to the benefit to the claimant or the potential wider public interest importance of the application. The proposal would lead to judicial review cases being restricted to those who could bear the financial risks associated with proceeding to the Administrative court, thus reducing the ability of many members of the public and civil society organisations such NGOs to challenge important policy decisions of the executive. For example the important recent Supreme Court judicial review judgment in Osborne and Booth v The Parole Board; In the application of James Clyde Reilly for Judicial Review (Northern Ireland) [2013] UKSC 61 might not have been taken if the current funding proposals had been in place because public lawyers instructed on behalf of the claimants would have been deterred by the financial risk incurred in undertaking preliminary work before the permission stage.
Furthermore, the proposal undermines the purposes of judicial review and legal aid. Judicial review should enable members of society to challenge the actions and decisions of the executive and this ability should be based on the importance of the policy and not the ability to fund such a challenge. Legal aid should enable those who cannot afford legal assistance to engage in the judicial review process and obtain the legal representation that is necessary to ensure fair legal access irrespective of finances. This is with the safeguard that the judiciary determines standing and that the public interest should be defined within the context of the balance and the separation of powers between the judiciary, the legislature and the executive.
The proposal undermines this by distinguishing which stages of the process are worthy of financial assistance, i.e. only if it satisfies the permission stage. This precept offends the equality of arms principle. However, the preparatory stage is incredibly important to the judicial review process and legal service providers should not be expected to bear the costs themselves. The proposal also means that a decision about which cases are the most deserving is determining the availability of legal assistance. Legal representation is fundamental to the whole process of judicial review and should not be dependent on the case reaching a certain stage, contested by the government. Restricting funds until after the permission stage would discourage many public lawyers from engaging in the process at the preliminary stage, further reducing the number of judicial review applications. This reduction would be based on inability to meet the costs, which would have a detrimental effect on the most vulnerable members of society. Far from meeting the government’s objectives of reducing judicial review to cases that are the most important (a judgement that is based on a flawed presumption that the government is best placed to decide who is most deserving), it would only serve to skew judicial review applications to those with greater financial resources and exclude members of society who are most vulnerable in the face of the proposals that require challenge.
Question 20: Do you agree with the criteria on which it is proposed that the LAA will exercise its discretion? Please give reasons.
We do not agree with the proposed criteria. The criteria on which the LAA would exercise its discretion would affect many people’s ability to obtain legal representation.
Costs of oral permission hearings
Question 21: Should the courts consider awarding the costs of an oral permission hearing as a matter of course rather than just in exceptional circumstances?
We consider that costs should be a matter of application and determination by the judge. The costs procedure in these cases should not be determined by the executive but reside with the judiciary. It will discourage claimants from applying for judicial review cases if they may be faced with costs beyond just the Acknowledgement of Service. Such proposals would favour claimants who are prepared to bear the financial risks associated with a judicial review application and again makes the ability of people to engage in the judicial review process dependent on finances.
Wasted Costs Orders
Question 22: How could the approach to wasted costs orders be modified so that such orders are considered in relation to a wider range of behaviour? What do you think would be an appropriate test for making a wasted costs order against a legal representative?
We disagree with the proposal to modify and extend the wasted costs order process. The government has not shown sufficient reasons to depart from the current situation. The process lies with the court and its successful operation depends on interpretation by the judge in the particular case. As is acknowledged (paragraph 147) these costs orders are made rarely and the current system has not been demonstrated to be inadequate. The proposals are again an example of the government’s attempt to discourage people from applying for judicial review on the basis of financial means, which should not govern the system and the ability of the public to engage in the judicial review process to challenge the government in its use of executive powers
Question 23: How might it be possible for the wasted costs order process to be streamlined?
We do not agree that the wasted costs order process need be changed.
Question 24: Should a fee be charged to cover the costs of any oral hearing of a wasted costs order, and should that fee be contingent on the case being successful?
The government has not advanced sufficient reasons to justify an additional fee being charged at a later stage in the judicial review process, as well as the original application fee.
Question 25: What scope is there to apply any changes in relation to wasted costs orders to types of cases other than judicial reviews? Please give details of any practical issues you think may arise.
We do not consider that any further changes should be made to the costs order process in cases of judicial review, or any others.
Protective costs orders
Question 26: What is your view on whether it is appropriate to stipulate that PCOs will not be available in any case where there is an individual or private interest regardless of whether there is a wider public interest?
We oppose the restriction of the availability of PCOs. We do not consider it is suitable to prevent PCOs being available in a case where there is an individual or private interest in the case. The public interest in the case is the most important form of interest and it would not be appropriate to restrict PCOs just because there is also a private or individual interest at stake. The proposals would generate greater uncertainty for claimants who may be deterred by the costs they may face if their application is unsuccessful. It would create a chilling effect by placing financial barriers on those who want to engage in the process. NGOs and vulnerable individuals who would not be able to bear the financial risk that would be associated if the availability of PCOs was limited would be discouraged from bringing claims, which might be important to bring in the public interest. This would especially be true for NGOs whose role involves bringing cases to the attention of the court and the public even if the policy has not had a direct effect on an individual yet.
There is definitely a link between the importance of bringing the case into the public attention by NGOs who may take on the responsibility if the policy is not publicly known yet, and the consequent chilling effect because they are hindered by the potential costs. Sometimes, it is important for issues to be brought to the attention of the public and the courts, even if in the particular case is not successful as it is the importance of the process of challenge that must be preserved, and this should not depend upon financial resources. NGO funding is reliant on a mixture of philanthropy or other form of public subscription. Those funding NGO work in terms of strategic litigation would also be deterred from funding if they were to be co-joined as potential bears of litigation risk costs as would corporate sponsors (for example pro bono units of commercial law firms) who might be exposed to unacceptable unquantifiable costs in public interest litigation.
Question 27: How could the principles for making a PCO be modified to ensure a better balance a) between the parties to litigation and b) between providing access to the courts with the interests of the taxpayer?
We do not consider that the principles for making a PCO should be modified. The public interest at stake in bringing certain cases to the attention of the courts should not be dictated to by the financial security of the parties. It not only restricts access to the legal process itself, but also jeopardises the purpose of judicial review as it may mean that cases that are in the public interest (yet also involve private interests) are not brought to the attention of the court and the policy would go unchallenged.
Question 28: What are your views on the proposals to give greater clarity on who is funding the litigation when considering a PCO?
We do not consider that the source of funding should be relevant to the consideration of a PCO. The principles that currently govern the availability of PCOs are sufficient to achieve their purpose of protecting claimants from undue financial burdens and the source of funding is not relevant for that purpose. For example, NGOs are sponsored either through public subscription (membership) or by private philanthropy. To require disclosure beyond what is available in the public domain through the Charity Commission is an unnecessary and pervasive invasion into the fund arrangements of these civil society organisation.
Question 29: Should there be a presumption that the court considers a cross cap protecting a defendant’s liability to costs when making a PCO in favour of the claimant? Are there any circumstances when it is not appropriate to cap the defendant’s costs liability?
Currently, it is automatic for the court to consider a request from the defendant for a cross cap. Considered in light of section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it is not appropriate to cap the defendant’s costs liability. The current costs provisions are sufficient to provide safeguards that ensure a defendant is only liable for the claimant’s costs that have been reasonably incurred.
Question 30: Should fixed limits be set for both the claimant and the defendant’s cross cap? If so, what would be a suitable amount?
We oppose the introduction of fixed caps for either claimants or defendants. The operation of PCOs should remain within the current framework and we do not feel that sufficient arguments have been advanced to justify their modification.
Costs arising from the involvement of third party interveners and non-parties
Question 31: Should third parties who choose to intervene in judicial review claims be responsible in principle for their own legal costs of doing so, such that they should not, ordinarily, be able to claim those costs from either the claimant or the defendant?
We do not consider that a third party intervener should be responsible in principle for their own legal costs. We are concerned that the proposals relating to third party interveners would have a detrimental impact on the role of NGOs and other important actors in the judicial review process. This is because making a third-party intervener liable for their own costs not only impacts negatively on the quality of the decision by dissuading parties who may add substantive and significant arguments from intervening, but would also have a disproportionate effect on the ability of NGOs and charities to engage in the judicial review process, insulating the executive further from proper scrutiny and accountability in the exercise of power.
Third party interventions can be extremely beneficial to the quality of the decision making process in the case. They may be able to bring additional expertise and arguments, particularly if they are an interest group that represents a particular group of society or issue. The rules on costs might therefore discourage those who could bring something significant to the case due to their inability to bear the financial burden, particularly if they are an NGO or charity with restricted financial resources. This would consequently restrict the ability of NGOs to engage in the judicial review process in general as the costs would prove a practical hindrance. This would furthermore affect the effectiveness of the judicial review process by limiting those who can engage in it to the financially stable and resourceful. Such a policy would again misunderstand the role of judicial review as a tool for the public to tests the use of executive powers, by dictating the process along the lines of costs rather than the importance of issues.
From a practical perspective, the quality of the decision making process may be hindered if certain arguments or opinions are excluded. It may lead to an increase in subsequent costs because of the need for further litigation if important points are not raised or clarified in the original case due to a costs barrier. There is no real evidence to support the assertion that third party interveners greatly increase the costs in the first place, and their participation at the outset may lead to a more efficient and thorough consideration of issues in the original case.
Our most important concern is that the attempt to ensure third party interveners bear their own costs is to dissuade these civil society organisations from engaging in the judicial review process. It will only serve to insulate executive action from necessary challenge by restricting review to those with the resources to bear the financial risk. This is inconsistent with the constitutional role and purpose of judicial review, which should ensure that the actions of the executive are held to account through engagement by the public and society.
Question 32: Should third parties who choose to intervene in judicial claims and who cause the existing parties to that claim to occur significant extra costs normally be responsible for those additional costs?
The intervention of a third party may bring an important perspective to the application that would not have otherwise been considered. The benefits that they can bring mean they should not be responsible for any additional costs that may be incurred. Furthermore, any intervention is at the discretion of the court who are in the best position to restrict the involvement if it may not add anything of value to the process. A key consideration in deciding whether to apply to make a third party intervention in a judicial review is whether the intervention will add value to the application.
Question 33: Should claimants be required to provide information on how litigation is funded? Should the courts be given greater powers to award costs against non-parties? Do you see any practical difficulties with this, and how those difficulties might be resolved?
We do not consider that the source of funding is relevant to the litigation and particularly not so in the case of judicial review where the focus should be on the importance of challenging a potentially unlawful policy and the quality of the intervention on the understanding that the intervention in the application must bring added value to the application. Concentrating on the source of funding distracts away from this purpose and potentially undermines the process by considering things that are of no relevance to the case.
It is in the interests of the public, the legal process and the proper exercise of government power that judicial review claims should be brought to the attention of the court and the rest of society and this important purpose should not be clouded by attention to the source of funding which in one interpretation could be interpreted as a devious political ruse to suggest alternative motivations of philanthropic sponsors of NGO activity in the field of strategic litigation
We consider that the ability of the courts to award costs to non-parties is sufficient and we do not feel these powers need to be altered.
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