Rule of law at risk

Clause 64 of the Criminal Justice and Courts Bill “risks undermining the rule of law”, a committee of peers has warned.

The clause provides that the courts must refuse a judicial review application if it appears highly likely that the “outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. Currently, the courts should refuse an application only if it is inevitable that the conduct would have made no difference to the result.

This raises issues of principle and practical concern and “risks unlawful administrative action going unremedied”, the House of Lords Constitution Committee says in its report on the Bill. It warns that the Bill risks turning the permission stage of the judicial review process into a “full dress rehearsal” of the substantive stage, which could have the effect of increasing costs.

The peers also questioned the government’s position that judicial review “has expanded massively”, since judicial applications will only have increased modestly once immigration cases are dealt with by the Upper Tribunal rather than the High Court.

Angela Patrick, director of human rights policy at Justice, says: “Ministers have repeatedly dismissed serious constitutional concerns expressed by Justice and others—including the senior judiciary—as overblown.

“Now Parliament’s own cross-party constitutional watchdog has spoken, and as peers prepare to vote, government may be forced to listen. These measures will shield government—big and small—from scrutiny, will deprive individuals without means of an often much-needed remedy and will undermine the rule of law. The ballot box should not be the only realistic remedy for unlawful public action.”