Act in the court: it might bring welcome change

Courts are more receptive to judicial reviews than they once were, and they can bring radical change - but they are risky. Mathew Little reports.

The Royal Courts of Justice. Photo: Phil Adams
The Royal Courts of Justice. Photo: Phil Adams

No whaling ships had been stormed or power stations scaled by nimble activists, but Greenpeace was celebrating one of its most famous public relations victories. "Something has gone clearly and radically wrong," said Mr Justice Sullivan as he condemned the Government's consultation on its decision to commission a new wave of nuclear power stations in the UK in February. The process had been "misleading", "seriously flawed" and "procedurally unfair", he concluded, and ministers would have to do it all again.

Greenpeace was exultant at only its second victory in the High Court. "We were surprised by how emphatically the judge agreed with the arguments we were making," said UK director John Sauven. Tony Blair defiantly said the policy would not change, but his nuclear plans had taken a severe jolt.

Downing Street's consternation may be compounded by another legal challenge to government policy from the voluntary sector. Last month, Campaign Against Arms Trade and The Corner House submitted papers for a judicial review of the decision by the Serious Fraud Office to drop its corruption inquiry into a £40bn arms deal between BAE Systems and Saudi Arabia. The inquiry was cancelled after warnings from the Government that it would damage national security, but the case, which the Prime Minister and the Attorney General wanted firmly closed, may be prised open again.

Beset by more brazen rebellions from its own MPs and a resurgent opposition, the Government is facing increasingly dogged attempts to reverse contentious decisions by a small but growing breed of legally savvy NGOs and charities, whose claims are now taken very seriously by judges, aware of their popularity and impact on public opinion.

Judicial review is a comparatively new addition to charities' campaign weaponry. "A decade ago, most public law challenges by NGOs in areas within their expertise would have been thrown out by the courts," says Phil Michaels, Friends of the Earth's in-house lawyer. "Now the courts are happy to hear expert NGOs - when an NGO brings a case, judges know it will be a well thought-through challenge that is not wasting the court's time."

A mark of the new attitude came in 2005 when, after lodging a challenge against the watering down of anti-corruption regulations by the Department of Trade and Industry, The Corner House was granted a protective costs order - even had it lost the case, it wouldn't have been liable for the other side's fees. In the event, the case was successful.

"Judicial reviews by NGOs are much more developed in Britain than in many other European countries," says Nicholas Hildyard, a researcher for The Corner House. "Campaigners in other countries are incredibly envious. Organisations have taken cases and gradually built up case law, which has opened up real possibilities for NGOs."

Judicial reviews rest on public law principles. Challenges can made to how public bodies make decisions - whether they have followed their own procedures, abused their powers, consulted properly or acted irrationally. The ruling in the Greenpeace case was not about whether new nuclear power stations were a good thing, but how the decision was made to go ahead with them. Although the strict legal arguments are narrow, the implications can be much wider for charities' public policy goals. According to Michaels, a judicial review can "reshape the political debate", even if lost.

The victory of The Corner House in the DTI case meant anti-corruption regulations, originally diluted under pressure from BAE, Rolls Royce and Airbus, were reinstated after the courts ordered a public consultation. "It was about procedures, but ultimately it changed public policy," says Hildyard.

The National Heart Forum also secured significant campaign gains by issuing a claim against communications watchdog Ofcom in 2006. In a consultation on junk food advertising aimed at children, the regulator had ruled out a pre-9pm ban. The forum threatened to ask for a judicial review, but dropped its plans after Ofcom decided to include a question about a pre-watershed ban in a new consultation before the case went to court. Although the new regulations, announced in February, did not bring a 9pm watershed, they went significantly further than Ofcom's original plans, restricting advertising aimed at all children under 16, rather than the under-nines as first proposed. "The interesting thing is the way our legal challenge galvanised support and further interest," says Jane Landon, deputy chief executive of the forum. "It helped us to stimulate a much wider campaign."

But although the gains from judicial review can be great, so can the risks. Despite the 2004 Corner House decision, it is still rare for a charity to be granted immunity from costs. The National Heart Forum pressed ahead despite knowing that it would have been liable for Ofcom's costs if it lost. "We did have an estimate of the cost and I won't pretend it wasn't significant," says Landon. "But we felt that this was important and in the public interest."

Greenpeace's solicitor, Jane Harrison of law firm Harrison Grant, says a judicial review should not be undertaken lightly because 70 per cent fail. "Be careful that you don't lose more than you stand to gain," she advises. "Costs can be very high indeed."

And it can backfire. "If you are taking a test issue, you have to take into account that you are asking a judge to decide," Harrison says. "If they decide against you, it's no longer an open question."

Some activists feel that CND's failed attempt to challenge the legal basis of the Iraq invasion in 2003 was too ambitious and ruled out the possibility of more realistic challenges to the war.

NGOs face a dilemma, says one campaigner, of which point of principle to go for. "They couldn't get Al Capone on the St Valentine's Day Massacre, but they did get him on tax evasion," says this campaigner. "Going on the political principle is fantastic if you win, but if you lose it closes down much more than a narrower point would do."

But some argue that NGOs and charities should be braver. Yogi Amin, a solicitor with law firm Irwin Mitchell, who successfully represented breast cancer patient Ann Marie Rogers in her battle for the drug Herceptin, says that although many charities support claimants through the submission of evidence, they are loathe to take cases themselves. "What we haven't seen yet is a raft of cases in which charities are bringing public law cases," he says.

Amin is currently representing an elderly Alzhei-mer's patient in another battle over the availability of drugs with the National Institute for Health and Clinical Excellence, but he feels charities are far better placed than individuals to mount claims. "If an 84-year-old Alzheimer's patient can make a change by going to court, so can an NGO," he says. "NGOs will bring a wealth of knowledge and research resources, and they will often have been involved in the early stages of lobbying."

With the steady withdrawal of legal aid, Amin believes NGOs and charities could be forced to step into the breach. But charities are also seeking public law remedies out of more self-interested motives. In 2004, six voluntary organisations won a landmark case at the High Court that quashed a decision by Leicester City Council to withdraw £2m of core funding, arguing successfully that the council had not adequately consulted them. The Public Law Project, which advised the groups in the case, won another judicial review to reinstate funding that had been withdrawn from a mental health group in Cardiff. According to project solicitor Louise Whitfield, the cases show that judicial reviews can be used to rectify the imbalances of power that exist between voluntary bodies and their statutory funders.

"There is always a public law argument that, even if a contract is coming to an end, the funder should consult the group it's taking funding from," she says. "If you run a women's centre that's been providing an important service on a run-down estate for years and somebody says they are not going to renew your service level agreement, that is arguably unlawful."

The Public Law Project is looking for a test case that would ask a judge to rule on whether breaching the Compact is against the law. "We think that would massively strengthen the Compact," says Whitfield.

Charities that win judicial reviews can also find themselves strengthened. "A lot of groups that have brought challenges say they are so much more confident, because the public body knows they are serious," says Whitfield. "It sounds cynical, but if you have successfully 'JR-ed' someone they're not going to mess you around again."

The Corner House - A Landmark Case

In 2005, The Corner House, an environmental and social justice NGO, applied for a judicial review of a decision by the Export Credits Guarantee Department, a part of the Department of Trade and Industry that insures companies doing business abroad. The case was to have important implications for NGOs.

The Corner House had written a report arguing that the department and similar agencies in other western countries were underwriting bribery. The department had toughened its anti-bribery policy, but the charity argued that the policy was watered down after a secret meeting with BAE Systems and Rolls Royce. The Corner House said that the way in which the policy was changed was contrary to the department's guidelines on consultation and "basic public law standards of fairness". The DTI settled out of court, just before a decision was due to be made on the application, and agreed to a public consultation - the original policy was reinstated.

The case was significant because The Corner House become the first NGO to be granted a full protective costs order, guaranteeing that it would not have been liable for the department's costs, even if it had lost the case. Since the case, many NGOs and charities have applied for the 'Corner House order', but with limited success: they have to prove that without the costs order they would not have been able to pursue a case.

Nevertheless, some public bodies agree not to seek costs in advance to avoid unsuccessfully resisting an application for a protective costs order and setting a precedent for future cases.

Judicial review for charities: A guide

Under a judicial review, a claimant asks the courts to decide on the lawfulness of decision-making by a public body. This might concern an abuse of power or whether correct procedures have been followed. It's a remedy of last resort, and claimants must show they have explored all other ways of seeking resolution. They have just three months to make an application for judicial review after the disputed decision has been made.

Charities should check that their articles of association do not preclude them from applying for a review. They should seek good legal advice and carry out a thorough risk assessment - including their liability for costs should they lose. A protective costs order should be applied for.

A lost case could set unwelcome case law that affects other voluntary organisations, but courts are increasingly receptive to cases brought by charities that have expertise in the area in question. Many cases are settled out of court before a final decision is made.

Judicial reviews are usually about narrow procedural matters but can have wider implications for public policy goals. They can boost campaigning through increased publicity and secure the release of important information. A high level of publicity before the ruling can influence a decision if it can be shown that public opinion supports the claim.

Charities that don't want to initiate public law cases themselves can fund individuals to make claims or support them through the submission of evidence once a review gets to court.

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