Judicial Review: why charities shouldn’t be the target

As our concerns about the Lobbying bill remain (and we hope for substantial changes as the bill progresses through the Lords), more worries stem from the latest suite of proposals from the Ministry of Justice to restrict judicial review.

The consultation, which closed last Friday, proposes to prevent those who do not have a direct interest in a case by restricting the test for ‘standing’, which governs whether a party is entitled to bring a judicial review. Current rules require that the party bringing judicial review has a ‘sufficient interest’ in the matter, which has been interpreted by courts as including cases where it is in the public interest for an issue to be examined. But the consultation is saying that this test is too broad, allowing the advancement of ill-conceived and vexatious claims.

This is yet another indication of an increasing narrative within certain government departments that judicial review is being used purely as a campaigning or publicity tool, and strategically misuse as a delaying tactic. At the basis of the proposals there are clear concerns about wasting time and costs to deal with claims that should not have been allowed in the first place.

While it is important to strike the appropriate balance between allowing greater freedom for aggrieved parties to seek judicial review against the time and cost of responding to claims, the overwhelming reaction of the sector is that these changes would go too far. The key concern is that they would severely restrict access to justice for charities acting on behalf of their beneficiaries. When we organised a round table with Bates Wells & Braithwaite to discuss the proposals, we were told about many situations where, if it had not been possible for a particular charity to advance the claim, the individuals affected would have been left with no justice.

Charities and voluntary organisations have a right and legitimate role in protecting and supporting their beneficiaries, and that includes making use of judicial review when necessary. This is a decision that is not taken lightly or thoughtlessly. This is confirmed by the relatively few judicial review cases that have been brought by the voluntary and community sector, the majority of which have been successful.

Charities and voluntary organisations seek a judicial review to help and support the people and causes they work for. This is a fundamental point that our NCVO response – MoJ consultation further proposals on judicial review is absolutely clear about. There are many examples of ground-breaking cases already brought by charities and voluntary organisations, and of the huge benefits they have achieved. We have mentioned only a few, but it would be great if you can add any more in the comment boxes here below.

See also why our colleagues at Compact Voice are worried about the proposed changes.

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Elizabeth was head of policy and public services at NCVO until 2020.

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