The LITRG has expressed concern that proposals by the Ministry of Justice will put judicial review even further beyond the reach of the ordinary citizen than it is already.
09/11/2013, by Low Incomes Tax Reform Group, Tax Articles - General
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Introduction
The Group takes the view that judicial review is sometimes the only effective remedy available to ordinary taxpayers against HMRC when the tax authorities act in such a way as to adversely affect their lives and financial wellbeing.
LITRG’s interest in this proposal is from the point of view of the unrepresented taxpayer or tax credit claimant seeking amends in a matter in which there is no statutory right of appeal and they have exhausted all other possible remedies. One of the Group’s recommendations is that the lower courts and tribunals should, in certain cases, be empowered to reach decisions on matters involving the application of judicial review principles.
The objective of the proposals and what they do not achieve
LITRG is not unsympathetic to the Government’s wish to discourage unmeritorious claims while speeding up progress in genuine cases. Nevertheless, it should also be made easier for individuals to challenge unlawful action (or inaction) by the executive. The Group suggests that there would be merit in empowering the lower courts and tribunals, particularly the First-tier Tribunal, to deal with judicial review where (a) an appeal before them raised judicial review principles, or (b) there was no statutory right of appeal, and judicial review was the only remedy.
The Government wishes to restrict the bodies that can bring judicial review proceedings to those with a direct and tangible interest in the subject matter. But LITRG’s view is that representative bodies, representing individuals who cannot easily bring judicial review challenges themselves, should continue to have standing to bring such claims.
LITRG’s concerns
On costs, there is a concern that the proposals will have the effect of rebalancing financial incentives in favour of the defendant and against the claimant. The present costs regime has evolved in such a way as to achieve a reasonably fair balance between state and citizen, taking account of the imbalance in the resources of each. Implementing these proposals could well have the effect of putting judicial review well beyond the reach of individuals of modest means who need it the most, and who have good cases to pursue.
LITRG particularly opposes the withdrawal of protective costs orders from claimants who would not so much benefit if they were successful as suffer a detriment, such as having a tax liability or penalty imposed upon them, or welfare entitlement withdrawn or denied to them, if unsuccessful. If judicial review applications were able to be heard in the First-tier Tribunal, that would both contain costs of the proceedings and enable parties to contest the action in a costs-free environment.
Summary
The Government’s proposals will further reduce access to a remedy that is already out of reach of most ordinary citizens, but which increases in importance as statutory appeal rights become more restricted. To the extent that judicial review becomes further beyond the reach of the ordinary citizen, those with protected characteristics under the Equality Act 2010 suffer even more because they no longer have access to the only effective remedy for failures by the executive involving discrimination, whether direct or indirect. Few apart from those who are fortunate enough to secure pro bono representation will be able to enforce their rights, and that is bad for justice and bad for the rule of law.
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