The government has suffered a major defeat in plans to restrict the use of Judicial Review, as Peers in the House of Lords voted against the government’s proposals and introduced a key set of amendments. Those who voted against the plans included ex-Tory cabinet ministers, who defied party policy on the issue.
Judicial Review provides a mechanism to challenge decisions made by public authorities on the basis that they’re unlawful, irrational or procedurally incorrect. It provides a vital check on power and offers redress when decisions are made outside of the law.
Three crucial changes contained in the Criminal Justice and Courts Bill presented to the House of Lords were voted down by Peers. These were:
- Changing the materiality test such that claimants would have to prove that it was ‘inevitable’ not ‘highly likely’ that were a decision made differently a different outcome would have resulted, reducing the power of judges to use their discretion as to whether cases are heard or not.
- A requirement that claimants would have to provide financial information prior to bringing a claim
- A requirement that intervening third parties would be liable to pay the costs of the other parties for issues arising from their intervention
All three changes would have exposed potential claimants as well as those who might intervene on behalf of claimants to a huge amount of financial risk, thus acting as a significant deterrent to people seeking redress for unlawful decisions. The Bill would also have made it much easier for governments to act outside of the law with relative impunity. During the debate, a former Lord Chief Justice, Lord Woolf, argued that the alternative to judges using their power of discretion was an ‘elective dictatorship’, whereby governments are in all practical terms beyond reproach.
Chris Grayling has previously argued that Judicial Review has been used by ‘leftwing campaigners’ to frustrate and delay government initiatives and claimed that there have been too many applications for Judicial Reviews, despite evidence to the contrary and the very stringent tests in place.
The defeat in the House of Lords was a humiliating blow for the government yet it was not the last word on the changes. The next step is for the proposals to be debated again in the House of Lords in early November, after which the Bill (including the amendments by Peers) will return to the House of Commons for consideration.