Pyongyang Postponed

31 Oct 2014

Last Tuesday evening the House of Lords rejected most of the governments proposed changes to Judicial Review. In this context the Criminal Justice and Courts Bill proposes to:

  • require that applications be thrown out if the defendant (usually but not exclusively a government department) can show it is "highly likely" the action complained about made no difference to the claimant even if it was unlawful (someone in the Ministry has looked at Polkey v A E Dayton Services Ltd [1987] UKHL8);
  • require applicants to give a full breakdown of their finances;
  • permit the Lord Chancellor to redefine public interest proceedings (so it's easier to rig the playing field against applicants);
  • restrict the Court's authority to make costs orders against the defendant (usually but not exclusively a government department).

The Justice Minister's plea that he is trying to protect Judicial Review's role as a check on public bodies from abuse forged some unlikely alliances. The Shadow Justice Minister (Sadiq Khan MP) said "Judicial Review is a crucial tool for the British people to hold to account the actions of those in positions of power and responsibility". The President of the Law Society (Andrew Caplen) said "if the government acts unlawfully it must be brought to account in the Courts".  Lord Deben (AKA John Selwyn Gummer – famous for making his daughter eat a beef burger on national television during the BSE crisis) said Judicial Review is the "British defence of freedom… every now and again it is annoying to Ministers but that is what it is there for.  It made me a better Minister because it made me think of the law, not my opinion."

The Treasury Solicitor represents most government departments when they are taken to Court. In 2010 it acted in 8,566 cases. In 2013 it acted in 16, 449 cases; an increase of 92%. QED.