The government has scrapped some of its proposals to reform the judicial review process, which charities feared would have removed their ability to bring claims, but plans to increase the costs for charities remain.
Last year, Justice Secretary Chris Grayling controversially launched a consultation on judicial reviews, saying that they were being used as a “promotional tool for countless left-wing campaigners”, including charities.
Many charity sector groups, including the Panel on the Independence of the Voluntary Sector, said the proposed changes presented a major threat to charities’ ability to safeguard the interests of the powerless against abuses of power by the state, as well as reversing the longstanding ability of voluntary bodies to contribute to the development of law in the UK.
Today, the government has published its response to its consultation on judicial reviews.
A proposal to introduce a test for ‘standing’, limiting entitlement to bring a judicial review to those with a direct interest in the case, has been dropped after charities and campaigning groups warned it would have removed their ability to bring claims on behalf of individuals.
Neil Cleeveley, Navca's director of policy and research, said: “We are relieved the government has abandoned plans to prevent charities taking judicial review cases on behalf of those they support.” While, Sir Roger Singleton, Independence Panel’s chair, said: "It is good that the government has listened and decided not to change the rules to limit who can bring judicial reviews in the courts."
Melanie Carter (pictured), head of the public and regulatory law team at Bates Wells Braithwaite, also welcomed the government’s change of heart on the ‘standing’ test, but warned that it was still planning to introduce reforms which will negatively impact on the work of the charity sector.
Greater cost burden for interveners
Speaking to civilsociety.co.uk, Carter said: “Government is discouraging the voluntary sector from intervening in judicial reviews by increasing the cost burden,” she said.
At times, the voluntary sector intervenes, or gives evidence at judicial reviews where they feel they are best placed experience-wise. Currently, there is the presumption that the ‘intervener’ bears its own costs. The government now plans to change the presumption so ‘interveners’ bear the costs of other parties in an intervention.
“In one fell swoop this stops everyone except for the largest ‘interveners’,” she said.
She added: “There isn’t an evidence base to show that there is abuse in this area or it has led to widespread burden. It’s linked to a broadside to reduce avenues for challenges against government.”
Carter also warned that changes to the circumstances in which a court can make a protective costs order would negatively impact on charities.
Although protective costs orders – which limit the costs a claimant may be required to pay to the other side - will not be abolished, they will be restricted to cases raising “serious issues of the highest public interest” which otherwise would not be able to be taken forward (except in environmental claims).
Carter warns that these measures will inevitably have a deterrent effect on all voluntary sector bodies but particularly those with very limited funds from bringing important public interest cases, often on behalf of the most vulnerable in our society and those not in a position to take legal proceedings themselves.
Reflecting on the recent Lobbying Act, Carter said it highlighted a pattern of government attempts to stifle legitimate challenge.
The Lobbying Act has been a constant bone of contention within the charity sector, which says it will severely restrict campaigning. The government made little concessions to the law, despite vociferous opposition from the sector.
Carter said government had likely made some concession on judicial reviews due to the powerful lobbying influence of judges.
Attack on democratic accountability
She added that cutbacks in legal aid for judicial review compounded the damaging changes to the judicial review process.
“It’ll be harder for the charity sector to protect their interest groups by challenging government action. I feel strongly that this is an attack on democratic accountability.”
The changes to the judicial review process negatively impacting on charities will be introduced as part of the Criminal Justice and Courts Bill.
