A group of legal bodies have written to MPs to urge them to protect judicial review from changes that may harm charities' ability to represent vulnerable beneficiaries.

Judicial review is the legal process that enables individuals to challenge unlawful decisions by public bodies.

The government has introduced legislation in the Criminal Justice and Courts Bill which will water down protections for charities representing vulnerable beneficiaries, but several of the government's proposals have been removed or amended in the House of Lords.

The Bar Council, the Law Society and the Chartered Institute of Legal Executives (Cilex) wrote to MPs yesterday citing the importance of judicial review in allowing the weakest members of society to scrutinise executive power, and urging them not to remove peers' changes from the bill when it returns to the Commons.

The Lords' amendments will go before a Commons vote on 1 December, but the Bar Council is concerned the government’s intention is to vote them down.

Charities are concerned that changes to judicial review, set out in the government's Criminal Justice and Courts Bill, will make it more difficult for them to act as legal representatives to their beneficiaries. 

The Bill contains changes that would impose greater financial penalties on unsuccessful judicial review claimants and organisations, including charities, that support test cases and other litigation. Costs would be recovered against third parties, such as charities, that support litigation.

One of the Lords' amendments, to clause 65, was that the court consider the circumstances of the individual case and have the discretion to consider an application for judicial review, even when third party financial information is not provided.

An amendment was made to clause 67 on “interveners and costs”, which would maintain that the courts have discretion on whether to order an intervener, such as a charity, to pay the costs.

‘Chilling effect’

The original clause requires the court to make an order for costs against an intervener where a party to the litigation incurred costs as a result of the intervention.

According to the legal bodies “the government’s proposals would undoubtedly have had a ‘chilling effect’, deterring charities, NGOs, professional bodies and others from providing the kind of assistance and information to which the courts attach such value.”

The letter sent yesterday to MPs urges them to “support the Lords' amendments and to allow the court to continue to exercise discretion when awarding costs, and thus to maintain the valued contributions of interveners to  law-making”.

Suppress legitimate challenge

Law firm Bates Wells Braithwaite sent a briefing to clients this morning, also urging MPs to support the Lords' amendments.

“The effect of these proposals will be to suppress legitimate challenge; limit judges’ discretion to act in the public interest and shield public agencies from effective oversight," the briefing said.

“Ultimately these changes will affect how and whether Government will abide by the rules which Parliament sets."

'Campaigner’s armoury'

Last September, justice secretary Chris Grayling wrote in the Daily Mail that “the judicial review system is not a promotional tool for countless left-wing campaigners”.

“In the charity sector, a whole range of former advisers from the last government can be found in senior roles,” he said.

“One essential part of the campaigner’s armoury is the judicial review, through which it is possible for them to challenge decisions of government and public bodies in the courts. As a result, they hire teams of lawyers who have turned such legal challenges into a lucrative industry.”

But charities argue that proposed changes to judicial review will "seriously damage the ability of charities to stand up for their client groups".

Writing for Civil Society News, in September, Shauneen Lambe, executive director of the charity Just for Kids Law, wrote: "The Bill seeks to deter organisations from being able to share their specialist knowledge or experience with the court, by making it harder for them to intervene in cases that raise issues of wider public interest... In future, small charities like us at Just for Kids Law, which bring important legal challenges on behalf of the client groups we serve, may risk bankruptcy if they bring judicial reviews."