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It was great to join this virtual roundtable held by @YLALawyers yesterday on the Independent Review of Administrative Law.
I spoke mostly about access to justice and the adverse costs risk for claimants who are not eligible for legal aid. https://twitter.com/ylalawyers/status/1308821977768001539
I spoke mostly about access to justice and the adverse costs risk for claimants who are not eligible for legal aid. https://twitter.com/ylalawyers/status/1308821977768001539
The Review’s call for evidence asks:
“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf
“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf
This is the starting point for the Review, and in my view we should answer ‘no’ - it is already far too difficult for citizens to challenge potentially unlawful conduct by public bodies, and the panel should make recommendations to increase access to judicial review.
Clearly the government finds it inconvenient to defend judicial review cases, but that should be compared to the practical impossibility for most citizens to bring an application for judicial review when only around 25% of people are financially eligible for civil legal aid.
@TomRHickman made this point in two posts for the UK Constitutional Law Blog in 2017 titled ‘Public Law’s Disgrace’:
https://ukconstitutionallaw.org/2017/02/09/tom-hickman-public-laws-disgrace/
https://ukconstitutionallaw.org/2017/10/26/tom-hickman-public-laws-disgrace-part-2/
https://ukconstitutionallaw.org/2017/02/09/tom-hickman-public-laws-disgrace/
https://ukconstitutionallaw.org/2017/10/26/tom-hickman-public-laws-disgrace-part-2/
He said the most important issue in public law – and its disgrace – is that:
“The vast majority of the population have no access to judicial review in any meaningful sense. This is because of the rule … that if a claim is lost the claimant must pay the costs of the defendant”.
“The vast majority of the population have no access to judicial review in any meaningful sense. This is because of the rule … that if a claim is lost the claimant must pay the costs of the defendant”.
I think this should be a key focus for us as @YLALawyers responding to the Review.
There are at least two options we can suggest to try to address it, both discussed in Tom Hickman’s posts:
1. Qualified one way costs shifting
2. Extend the Aarhus costs regime to all JR cases
There are at least two options we can suggest to try to address it, both discussed in Tom Hickman’s posts:
1. Qualified one way costs shifting
2. Extend the Aarhus costs regime to all JR cases
Qualified one way costs shifting would create a general rule, subject to exceptions, that defendants cannot recover their costs against unsuccessful claimants.
The Aarhus costs regime limits the costs recoverable from individual claimants in environmental claims to £5,000.
The Aarhus costs regime limits the costs recoverable from individual claimants in environmental claims to £5,000.
The @UKSupremeCourt judgment in Unison tells us the common law right of access to the courts is inherent in the rule of law.
In order for access to the courts to be practical and effective, the adverse costs rules in judicial review cases need to be reformed.
In order for access to the courts to be practical and effective, the adverse costs rules in judicial review cases need to be reformed.
As a general point, the Review panel must acknowledge that the effect of any further restrictions on judicial review will be to:
1. reduce the ability of citizens to challenge potentially unlawful state conduct; and
2. allow unlawful conduct by public bodies to go uncorrected
1. reduce the ability of citizens to challenge potentially unlawful state conduct; and
2. allow unlawful conduct by public bodies to go uncorrected
And to end this thread, I wrote this piece about the Review for @openDemocracyUK last month, to try to explain why I think we as citizens should all be concerned that the government wants to limit our means of holding it accountable under the law: https://www.opendemocracy.net/en/openjustice/whos-afraid-of-judicial-review/
