Third sector organisations intervening in judicial review processes will not be forced to pay the costs incurred by other parties as a result of their interventions after the government was last night defeated in three House of Lords votes on tightening the rules around judicial review.
But a fourth amendment that would have reversed plans to make it harder for less well-financed charities to bring judicial reviews was not carried.
Lawyers, charities and campaigners have criticised Part 4 of the Criminal Justice and Courts Bill, which would reform the judicial review process if enacted. Judicial review is a court proceeding that examines the lawfulness of decisions made by public bodies.
A consultation in 2013 had proposed introducing a tougher test on which third-party organisations, such as charities, could bring judicial reviews, but these were not included in the bill as introduced in February.
The bill also proposed that interveners – third parties such as charities that made a contribution to a judicial review process – would be asked to pay the costs incurred by other parties as a result of the intervention. The government considered removing this proposal, but last month decided to retain it. But last night the Lords voted out the presumption that interveners would pay, and handed discretion on awarding costs back to the court.
Another clause in the bill said that if a public body could demonstrate that the result of an incorrectly made decision was no different to what would have happened if the decision had been properly made, a court would have to block judicial review applications. This, and another clause forcing applicants to disclose information about sources of finance "likely to be available" to them, was voted out. In both cases, discretion was handed back to the courts.
Melanie Carter, a partner at the law firm Bates Wells Braithwaite, said these amendments – in particular, the one on interveners’ costs – upheld the voluntary sector’s ability to bring and intervene in judicial review. She said: "It’s been a very successful campaign, not just from the sector but from the judiciary as well – they’ve been very well mobilised. Generally speaking, the judiciary appreciates third sector bodies both making and intervening in judicial review proceedings."
The bill also proposes making it more difficult for a party that brings a judicial review to limit their costs by applying for a protective cost order. Under the proposed law, it would not be possible to apply for such an order until later in the process of applying for judicial review, meaning charities ran a greater risk of financial liability.
Carter said: "That is still of major concern, because it means that only third sector bodies that are well funded will be able to run the risk."
Mark Hatcher, an adviser to the Bar Council, which represents barristers in England and Wales, said: "In voting last night, peers from all sides stood up for people’s right to challenge governments when they act illegally. Standing up for judicial review means standing up for the rule of law."
The bill will now be given a third reading in the Lords on 10 November. The final stage of the bill’s passage into law involves both houses of parliament agreeing on the final wording of the bill, at which stage it will be confirmed whether these amendments stand.