Proposed changes to judicial review are 'a full-frontal attack on charity campaigning'

Lawyer Melanie Carter of Bates Wells Braithwaite says there is no strong evidence for the government's attempts to restrict the right to bring reviews

Melanie Carter
Melanie Carter

Recent government proposals to make it more difficult to bring judicial reviews are "a full-frontal attack" on charity campaigning, a group of charity representatives heard yesterday.

The government published a consultation last month proposing a number of changes that would restrict the ability of groups to bring judicial reviews, including proposals that only private individuals who are directly affected would have the standing to challenge a decision, and that limits on costs for organisations should be scrapped.

Melanie Carter, head of the public and regulatory law team at the law firm Bates Wells Braithwaite, said at a round-table discussion at her firm’s offices in London that the government was deliberately targeting campaigning organisations.

"This is a full-frontal attack on the way third sector bodies raise their voices and campaign against injustice," she said. "Judicial review is one of the cornerstones of our society, and any attempt to restrict it should be based on strong evidence, which just isn’t there."

Carter said in many instances, such as when an individual had been deported, it was not practical for that person to bring a judicial review.

She said the existing rules on costs were a balancing mechanism "because there can be a huge disparity in resources between defendants and claimants", but the new rules would remove that protection.

"The government calls this ‘rebalancing financial incentives’," said Carter. "But a more honest title would be ‘how to put people off bringing proceedings’."

Helen Mountfield QC, a barrister at Matrix Chambers, said at the meeting that the government wanted to use the changes to stifle criticism.

"This is part of a series of steps to restrict anyone in civil society who wants to criticise anything done by government," she said. "It’s my perception that this government feels got at by what it sees as obstructiveness.

"There’s a feeling on both sides of the political divide that they’ve been elected to get things done and we’re blocking them by making them follow the law. It’s a very dangerous way of thinking."

Mountfield said the government wanted to prevent judicial review being used as a delaying tactic or a publicity-seeking measure, but the changes would create an environment where it could be used by the rich but not by the poor.

"They say they want lawful administration but then try to remove the rights of people to point out when they have acted unlawfully," she said. "This is an attempt to hammer the nail into a coffin that has already been prepared by changes to the legal aid structure."

She said that the government’s claim – that judicial reviews were growing in number – was not supported by the evidence, which showed that they were relatively static outside the area of immigration.

She said the number of judicial reviews brought by campaigning groups was very small, but that "their success rate is disproportionately good".

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