A Chill on Judicial Review of Government Decisions in the UK?
There is tension afoot between the UK government and representatives of the country’s lawyers, over draft legislation designed to stem the tide of applications for judicial review of government decisions.
Judicial review is a legal proceeding in which government decisions can be challenged, not on the ground of what the decision is, but because of a flaw in the process by which the decision was made.
Some of the UK’s most senior judges have added their voices to criticisms of the bill.
The government contends many j.r. applications are ill-founded, expensive for the tax payer, and cause delay.
The draft legislation limits the availability of protective costs orders which cap the exposure of an unsuccessful j.r. applicant to legal costs. As a result, some argue, only those with deep pockets will be inclined to challenge decisions.
The draft bill also allows government ministers, rather than judges, to determine what is in the “public interest”.
Both the UK Bar Council, which represents barristers, and the Law Society which represents solicitors, have warned that the legislation will make it easier for public bodies to act without regard for the law.
Lady Hale, vice president of the UK Supreme Court, appearing before a legislative committee this summer questioned whether the bill is motivated less by saving public resources and more by decision makers’ dislike for being told their decision does not conform to the law.
Key clauses of the bill are now before the House of Lords.
Perhaps the size of the costs against unsuccessful applicants should be set by the judges who rule on the case…
–dave
[I suspect that might be what’s being outlawed]
It is not easy to tell from the original post, but there is actually legislation before Parliament on this topic: the Criminal Justice and Courts bill. It has been examined by the House of Commons and is currently before the House of Lords. Here is the official schedule of readings and hearings.
Here is a sceptical comment on the bill, bearing today’s date.
An update at the end of this article says that the House of Lords defeated the proposed amendments on judicial review in three separate votes.
Thanks to John G. for the sceptical comment he links to. It gives detailed examples of the recent effective use of judicial review proceedings.