Criminal Justice and Courts Bill — Clauses 64 and 65 — Judicial Review — Court Discretion to Waive Rules in Exceptional Cases — 13 Jan 2015 at 18:34

The majority of MPs voted against giving courts complete discretion, to be exercised in the public interest, over the operation of the process of judicial review. The majority of MPs voted instead to give courts more specific powers to waive rules in the public interest in exceptional cases. The majority of MPs voted for courts to be able, in exceptional cases, to both review cases where the outcome was not expected to have been different had the conduct complained of not occurred and to waive rules requiring applicants to provide financial information.

MPs were considering the Criminal Justice and Courts Bill^[1].

The motion passed in this vote was:

• That this House insists on its disagreement with Lords amendment 102B and agrees with amendments (a) to (k) in lieu.

Lords amendment 102B^[2] stated:

• Page 65, line 46, at end insert—
• “( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”

Amendments (a) to (k) in lieu^[3] stated:

• (a) Page 65, line 3, at end insert—
• “(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
• (2C)If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.””
• (b) Page 65, line 13, at end insert—
• “(3D) The court may disregard the requirement in subsection (3C) if it consider that it is appropriate to do so for reasons of exceptional public interest.
• (3E) If the court grants leave in reliance on subsection (3D), the court must certify that the condition in subsection (3D) is satisfied.””
• (c) Page 65, line 21, for “section 31(2A)” substitute “subsections (2A) and (2B) of section 31”
• (d)Page 65, line 22, for “applies” substitute “apply”
• (e) Page 65, line 23, for “it applies” substitute “they apply”
• (f) Page 65, line 25, at end insert—
• “(5B) If the tribunal grants relief in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (5A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””
• (g) Page 65, line 40, at end insert—
• “(3E) The tribunal may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest.
• (3F) If the tribunal grants permission in reliance on subsection (3E), the tribunal must certify that the condition in subsection (3E) is satisfied.””
• (h) Page 65, line 42, for “section 31(2A)” substitute “subsections (2A) and (2B) of section 31”
• (i) Page 65, line 43, for “applies” substitute “apply”
• (j) Page 65, line 44, for “it applies” substitute “they apply”
• (k) Page 65, line 46, at end insert—
• “(6B) If the tribunal makes an award in reliance on section 31(2B) of the Senior Courts Act 1981 as applied by subsection (6A), the tribunal must certify that the condition in section 31(2B) as so applied is satisfied.””
• Clause 65 Page 66, line 10, after “paragraph” insert “or, notwithstanding a failure to do so, the court in its discretion considers that it is nevertheless appropriate to grant the applicant leave to make the application for judicial review”
• Page 66, line 32, after “paragraph” insert “or, notwithstanding a failure to do so, the tribunal in its discretion considers that it is nevertheless appropriate to grant the applicant permission or leave to apply for relief”

These amendments would have affected clauses 64^[4] and 65 of the Bill. Clause 64 relates to judicial review and specifically prevents a judicial review taking place if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

The Lords amendment sought to empower the court to act at saw fit in the public interest in relation to judicial reviews.

The Commons amendments in lieu also sought to allow courts to disregard the rule against judicial reviews where the court judges the outcome would not have been substantially different had the behaviour complained about not occurred if the court considers there is an exceptional public interest in carrying out the review. The Commons amendments also provide for discretion for the courts to permit an application for judicial review to be considered even if the required financial information has not been provided. The financial provision is in clause 65.

The Commons amendments could be seen as accepting the essence of the Lords amendment but implementing it in a more limited manner.

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• [1] Parliament's webpage on the Criminal Justice and Courts Bill
• [2] Amendment sheet containing Lords amendment 102B to the Criminal Justice and Courts Bill
• [3] Amendment sheet containing Commons amendments (a) to (k) in lieu of Lords amendment 102B to the Criminal Justice and Courts Bill
• [4] Clause 64 of the Criminal Justice and Courts Bill

Debate in Parliament | Source |