Charities and community groups might be deterred from contributing money towards judicial reviews by proposed new laws, despite the latest government concessions on the bill, legal experts have warned.
Proposals for changes to judicial review as part of the Criminal Justice and Courts Bill were debated in parliament yesterday. The bill is at a stage known as "ping pong", in which amendments made to the bill by the House of Commons and the House of Lords are passed between each other in the hope of reaching an agreement.
The bill proposes that courts be obliged to consider the financial resources of people or groups that are helping to fund judicial review bids when awarding costs to other parties. As it stands, it will be obligatory for information about these financial resources to be given to the court.
But a government amendment to the bill, made yesterday as a concession to amendments proposed by the Lords, means this would only come into effect if the financial support supplied to the party bringing the judicial review exceeded a certain level. It is not clear, however, what this level would be or when or by whom it would be designated.
Frances Edwards, president of the Chartered Institute of Legal Executives, said: "Community groups, acting legitimately and in good faith to challenge unlawful decision-making, often need to pool their resources to foot the legal bills."
She said she was not reassured by the new amendment. The new law, she said, "might still create a chilling effect on people contributing to a fighting fund without wishing to control the litigation, fearing they may be subject to costs".
Under another amendment, courts would have discretion to allow a judicial review application even if it appeared highly likely that the decision would have been the same if taken properly, but only if there was an exceptional public interest in this happening.
The bill did not at first include any such provision around public interest, although Chris Grayling, the Secretary of State for Justice, inadvertently led MPs to believe it did. The Lords then added this as an amendment to the bill; the government added the word "exceptional" to the amendment.
Andrew Caplen, president of the Law Society, said: "Whatever the hypothetical outcome, if a public authority makes a decision unlawfully they should not get away scot-free. The other problem with the ‘highly likely’ and ‘exceptional public interest’ tests is that they potentially create much more work at the pre-permission stage. As legal aid is no longer available for this part of judicial review, those of restricted means will be unable to exercise their legal rights."
Alistair MacDonald, chair of the Bar Council, said: "MPs’ constituents face a double whammy – first they might have to fund even more lengthy and unnecessary legal arguments in the pre-permission stage; second, they might be liable for costs by contributing to a legal fund to pay for a legitimate legal challenge. This restricts access to justice and for no good reason at all."
The House of Lords had previously accepted amendments by MPs on the issues of interveners – which are often charities – potentially being made liable for the costs incurred by other parties as a result of their interventions.
The amendments are due to return to the Lords on 21 January.