This publication is the result of a collaborative project between JUSTICE, The Bingham Centre for the Rule of Law and The Public Law Project, and aims to provide an introduction to the latest changes to judicial review practice and procedure. Setting the latest changes from Parliament in their constitutional context, we hope that our work will help inform the Act’s interpretation and its early application.
In his Foreword, Lord Woolf of Barnes CH explains:
“[D]uring the passage of the Act…Ministers stressed that the Act, apart from preventing abuse, was not intended to undermine the current function of judicial review.”
He commends the publication for its timeliness and simplicity:
“[I] very much hope that judges, lawyers and anyone else who is involved with the Act will have the benefit of being assisted by its contents. If this is the result, then my fears for damage to the rule of law will be substantially reduced.”
Judicial review is a legal process by which individuals can challenge decisions made by public authorities on the basis that they are unlawful, irrational, unfair or disproportionate. It is a directly accessible check on abuse of power, a means of holding the executive to account, increasing transparency, and of providing redress when public agencies and central Government act unlawfully. In a country without a written constitution, it plays a particularly important role.
Despite the constitutional significance of judicial review, the appetite in Government for reform in the past 5 years has been unprecedented. The pace of change has been such that the cumulative and individual impact of specific reforms have, as yet, been impossible to measure. However, many of the changes made have been designed to deter claims and to introduce new procedural hurdles for claimants, including by restricting access to legal aid and sources of third party funding.
Part 4 of the Criminal Justice and Courts Act 2015 introduces changes to the arrangements for the funding of judicial reviews, the power of the court to refuse to hear claims and makes provision for the disclosure of information about individuals and organisations which fund judicial review. It introduces new rules on costs for third party interveners. As the Act begins to take effect, the need for clarity on its application will be crucial to prevent its provisions having an unintended chilling effect on the ability of individuals and organisations – including charities and not for profit organisations – bringing legitimate claims to challenge unlawful behaviour by public authorities.
Andrea Coomber, Director of JUSTICE, said:
“While judicial review cannot be cast in stone, the constitutional significance of the remedy means that change must be approached with care. Ministers promised Parliament that this latest tranche of reforms should not affect the function of judicial review. The task of making the measures work consistent with the rule of law is left to judicial discretion.
Clear early guidance will be crucial to ensure that litigants with good cases but shallow pockets are not deterred from pursuing legitimate issues in the public interest.
We hope that this short guide makes a small contribution to the early consideration of the Act’s provisions”
JUSTICE, The Bingham Centre for the Rule of Law and the Public Law Project are grateful to The Baring Foundation, AB Charitable Trust, Lankelly Chase, Trust for London and White & Case for their support of this project.
21 October 2015
We have produced a short summary of this report which may be helpful for non-lawyers working in charities and not-for-profit organisations working with judicial review or serving as Board members or Trustees.
You can read this summary here.