A bill including reforms that charities and campaigners say will make it more difficult to bring judicial review proceedings has become law.
The Criminal Justice and Courts Act 2015 was given royal assent last week, having been introduced to parliament in February 2014. Part four of the bill makes changes to four aspects of judicial review, the court proceedings in which a judge reviews the lawfulness of a decision made by or the actions of a public body.
One major change is that an organisation that intervenes as a third party in a judicial review proceeding might have to pay the costs of the other parties incurred as a result of their intervention if certain conditions are met – for example, if the intervener "has behaved unreasonably" or their actions "have not been of significant assistance to the court".
Melanie Carter, a partner at the law firm Bates Wells Braithwaite, said this could deter charities, which are often interveners in such cases, from taking part.
"This is likely to deter organisations with specialist knowledge, often charities, from assisting the court for fear of facing significant costs orders," she said.
The act says that a court must not permit a judicial review if it appears "highly likely" that the decision or action by the public body would not have been substantially different if the decision had been taken properly – except in cases of "exceptional public interest".
Carter said the fundamental objection to this clause was that it would "in some cases require the court to condone a public body’s unlawful action".
The new rules mean a court must be given information about the financial resources – above a certain, yet to be defined level – that are available to the party that is trying to bring the review. The court will be required to take this into account and consider making a cost order against those providing that finance.
"In theory, the rules mean that family members who help to fund a judicial review above the threshold against, say, a relative’s care home closure could be liable for the local authority’s costs if the review were unsuccessful," said Carter. "And those who contribute even below the threshold to a small charity’s fighting fund could face a costs order if the claim is unsuccessful."
The act also changes the way cost-capping orders are awarded – these allow the courts to set the maximum amount of the defendant’s costs that a claimant would have to pay if unsuccessful. They will now be available only after permission for a judicial review is granted, rather than before. This means there is a greater risk of big financial liability for charities that attempt to bring judicial reviews.
The government’s original consultation on the plans, in 2013, said it wanted to "tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services whilst protecting access to justice and the rule of law". A group of lawyers, led by Carter, said this was "a full-frontal attack" on charity campaigning.
Lisa Nandy, the shadow minister for civil society, has said a Labour government would reverse the changes.