The judicial review bill, which will be published on Wednesday, should “ring alarm bells” for people attempting to seek remedy against the state in court, the Law Society has said.
Details of the bill, released before full publication, which follows government rhetoric about overreach by the judiciary, prompted accusations that it would restrict the ability of individuals, including some of the most marginalised in society, to challenge the decision-making processes of public bodies.
While the Ministry of Justice abandoned arguably its most controversial proposal – to increase use of ouster clauses, which ringfence government decisions beyond the reach of the courts – it has limited the scope of judicial review in another way, which raised fears it may provide a template for future restrictions.
The bill ends the practice where parties in immigration and asylum cases who have been refused permission to appeal by both the first-tier and upper tribunal can bring a judicial review case in the high court, known as Cart judicial reviews.
Stephanie Boyce, president of the Law Society, which represents solicitors in England and Wales, said: “There is a great deal here that should ring alarm bells for people who come up against the might of the state.
“The MoJ suggests the bill may set a precedent for government to give itself the power to remove certain types of cases from the scope of judicial review, which would effectively spawn a new breed of ouster clause. There are rare, exceptional circumstances when it is appropriate for the state to circumvent the courts, and only with strong justification. Parliament will need to think very carefully about the potential impact of any such proposals on the rule of law.”
The MoJ claimed that research showed Cart judicial reviews had a success rate of only about 3% compared with a 40%-50% success rate for all other cases, costing the taxpayer more than £300,000 a year. But the source of the figures is unclear.
The government-commissioned review into judicial review used a figure of 0.22% in Cart cases, only for the Office for Statistics Regulation to say that the figure could not be right and was “overly simplistic”. Some experts have suggested a figure closer to 7%.
Charlie Whelton, Liberty’s policy and campaigns officer, said: “It appears that based on faulty statistical reasoning, this bill proposes to remove a vital safeguard that protects marginalised people, especially migrants, from mistakes being made by public bodies which could have a catastrophic impact on their lives.”
The MoJ said another feature of the bill would allow judges to determine a government’s action unlawful, without invalidating any prior actions. It said this could help claimants but Boyce suggested it could mean they derived no benefit from a successful challenge.
While interested parties await more detail, the shadow justice secretary, David Lammy, said it was “unhinged that the MoJ is wasting resources on attacking a vital process that works well while the courts system is on the brink of collapse”.
Derek Sweeting QC, chair of the Bar Council, said it was positive the government appeared to have “backed away from some of the more extensive changes” but stressed the system was working effectively.
The lord chancellor, Robert Buckland QC, said: “The government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment. We are giving judges the powers they need to ensure the government is held to account, while tackling those who seek to frustrate the court process.”